PROSECUTOR v MOININA FOFANA & ORS - JUDGMENT - Case No.SCSL-04-14-A [2008] SCSL 44 (28 May 2008)

Before:	Justice George Gelaga King, Presiding Judge Justice Emmanuel Ayoola Justice Renate Winter Justice Raja Fernando Justice Jon M. Kamanda
Registrar:	Herman von Hebel
Date:	28 May 2008
PROSECUTOR	Against	MOININA FOFANA ALLIEU KONDEWA (Case No.SCSL-04-14-A)

Office of the Prosecutor: Stephen Rapp Christopher Staker		Defence Counsel for Moinina Fofana: Wilfred Davidson Bola-Carrol Mohamed Pa-Momo Fofana
Karim Agha Joseph Kamara Régine Gachoud Elisabeth Baumgartner Bridget Osho Francis Banks-Kamara		Defence Counsel for Allieu Kondewa: Yada Williams Osman Jalloh

The APPEALS CHAMBER of the Special Court for Sierra Leone (“Appeals Chamber”) comprised of Hon. Justice George Gelaga King, Presiding, Hon. Justice Emmanuel Ayoola, Hon. Justice Renate Winter, Hon. Justice Raja Fernando, and Hon. Justice Jon Moadeh Kamanda;

SEISED of appeals from the Judgment rendered by Trial Chamber I (“Trial Chamber”) on 2 August 2007, in the case of Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T (“CDF Trial Judgment” or “Trial Judgment”);[1]

HAVING CONSIDERED the written and oral submissions of both Parties and the Record on Appeal;

1. In 2000, following a request from the Government of Sierra Leone, the United Nations Security Council authorised the United Nations Secretary-General to negotiate an agreement with the Government of Sierra Leone to establish a Special Court to prosecute persons responsible for the commission of crimes against humanity, war crimes, other serious violations of international humanitarian law and violations of Sierra Leonean law during the armed conflict in Sierra Leone.[2]

2. As a result, the Special Court for Sierra Leone was established in 2000 by an agreement between the United Nations and the Government of Sierra Leone (“Special Court Agreement”)[3] with a mandate to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.[4]

3. The Statute of the Special Court (“Statute”) empowers the Special Court to prosecute persons who committed crimes against humanity, serious violations of Article 3 Common to the 1949 Geneva Conventions for the Protection of War Victims and of Additional Protocol II, other serious violations of international humanitarian law and specified crimes under Sierra Leonean law.[5]

1. The Armed Conflict in Sierra Leone: The Kamajors and the Civil Defence Forces

4. When the civil conflict in Sierra Leone began in 1991, the military decided to enlist Kamajors as vigilantes to scout the terrain.[6] Because the Kamajors were limited in number, the community leaders and their chiefs made arrangements to encourage the Kamajors to expand their defence by increasing their manpower through initiation.[7] The Kamajors were then placed by their paramount chiefs at the disposal of government soldiers and they acted as allies in the defence of their areas against the rebels.[8] After each deployment, the Kamajors would be returned to their respective communities.[9] In 1996 after the death of Chief Lebbie Lagbeyor, the head of the Kamajors in the Southern Region, the paramount chiefs of the Southern Region appointed Regent Chief Samuel Hinga Norman as Chairman of the Kamajors for the region.[10]

5. The term “Kamajor” originally referred to a “Mende” male who possessed specialized knowledge of the forest and the use of medicines associated with the bush.[11] Kamajors not only procured meat but also protected communities from “natural and supernatural threats said to reside beyond the village boundaries.”[12] While referred to as Kamajors by the Mende, other ethnic groups refer to them by different names.[13]

6. The emergence of the Kamajor Society may be traced back to the Eastern Region Defence Committee (“ERECOM”), of which Dr. Alpha Lavalie was Chairman and Dr. Albert Joe Demby was Treasurer.[14] The Kamajor Society was formed at the local level in 1991, and was structured by Dr. Lavalie in 1992, immediately after the military coup by President Strasser’s National Provisional Ruling Council.[15]

7. On 30 November 1996, the Government of Sierra Leone and the Revolutionary United Front (“RUF”) signed the Abidjan Peace Accord, but the war resumed less than two months later.[16] At this time there was general dissatisfaction among soldiers in the military, primarily due to complaints about their welfare, particularly their rations of rice.[17] After President Ahmad Tejan Kabbah was overthrown in a military coup on 25 May 1997, the Kamajors went underground in the bush.[18] However, following an announcement on the BBC rallying the Kamajors, Kapras, Gbethis, Tamaboros and Donsos, they assembled again in Pujehun District and took up arms to fight against the Armed Forces Revolutionary Council (“AFRC”).[19]

8. Upon President Kabbah’s arrival in exile in Conakry after the coup, the Organisation of African Unity (“OAU”) designated the Economic Community of West African States (“ECOWAS”) to restore President Kabbah’s government to power. ECOWAS in turn mandated its Monitoring Group (“ECOMOG”) to carry out the task.[20] In a bid to re-establish his government, President Kabbah created the Civil Defense Forces (“CDF”) to coordinate the activities within the various militia groups and with ECOMOG.[21] The CDF was a security force comprised mainly of Kamajors who fought in the conflict in Sierra Leone between November 1996 and December 1999.[22] The CDF supported the elected government of Sierra Leone in its fight against the RUF and the AFRC.[23] President Kabbah appointed the Vice-President Albert Joe Demby as Chairman of the CDF, and Sam Hinga Norman (“Norman”) as the National Coordinator. In his capacity as National Coordinator, Norman was responsible for coordinating the activities of the CDF/Kamajors in supporting the military operations of ECOMOG to reinstate President Kabbah’s government.[24] Norman was also responsible for obtaining assistance and logistics from ECOMOG in Liberia.[25]

9. ECOMOG collaborated with the CDF operationally, particularly in the Bo-Kenema axis.[26] In addition, the Nigerian contingent of ECOMOG supplied the CDF with logistics such as arms, ammunition, fuel, food, money, intelligence and medical care.[27]

10. Alleging that Norman, Moinina Fofana (“Fofana”) and Allieu Kondewa (“Kondewa”) were individually responsible pursuant to Article 6(1) and/or Article 6(3) of the Statue for alleged crimes committed by the Kamajors, the Prosecution charged Norman, Fofana and Kondewa under Article 15 of the Statute in an 8-Count Indictment with crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and other serious violations of international humanitarian law in violation of Articles 2, 3 and 4 of the Statute.

11. The original Indictments against Fofana and Kondewa, approved on 24 June 2003,[28] were later consolidated with the Indictment against Norman, on 5 February 2004.[29]

12. The Consolidated Indictment (“Indictment”)[30] charged the three persons pursuant to Article 2 of the Statute with crimes against humanity, namely: murder and “other inhumane acts” in Counts 1 and 3, respectively, pursuant to Article 3 of the Statute; violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely: violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, pillage, acts of terrorism and collective punishments in Counts 2, 4, 5, 6 and 7, respectively; and, pursuant to Article 4 of the Statute, with a serious violation of international humanitarian law, namely: enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities in Count 8.

13. Upon Norman’s death on 22 February 2007, after the completion of the trial but before pronouncement of Judgment, the Trial Chamber on 21 May 2007 ruled that the trial proceedings were terminated against him and that the Judgment in relation to the remaining two Accused would be based on the evidence adduced on the record by all of the parties.[31]

14. The allegations that formed the basis of the charges against Fofana and Kondewa, as contained in the Indictment, were that:

“The CDF, largely Kamajors, engaged the combined RUF/AFRC forces in armed conflict in various parts of Sierra Leone – to include the towns of Tongo Field, Kenema, Bo, Koribondo and surrounding areas and the Districts of Moyamba and Bonthe. Civilians, including women and children, who were suspected to have supported, sympathized with, or simply failed to actively resist the combined RUF/AFRC forces were termed ‘Collaborators’ and specifically targeted by the CDF. Once so identified, these ‘Collaborators’ and captured enemy combatants were unlawfully killed. Victims were often shot, hacked to death, or burnt to death. Other practices included human sacrifices and cannibalism.”[32]

“These actions by the CDF, largely Kamajors, which also included looting, destruction of private property, personal injury and the extorting of money from civilians, were intended to threaten and terrorize the civilian population. Many civilians saw these crimes committed; others returned to find the results of these crimes – dead bodies, mutilated victims and looted and burnt property. Typical CDF actions and the resulting crimes included:

15. It was alleged that all acts or omissions charged in the Indictment as crimes against humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone,[34] stated as referring to “persons who took no active part in the hostilities, or were no longer taking an active part in the hostilities.”[35]

16. In regard to the status, standing and functions of Norman, Fofana and Kondewa within the CDF structure, and the individual criminal responsibility of Fofana and Kondewa, it was stated in the Indictment, that, at all times relevant to this Indictment:

(i) “. . . Norman was the National Coordinator of the CDF. As such he was the principal force in establishing, organizing, supporting, providing logistical support, and promoting the CDF. He was also the leader and Commander of the Kamajors and as such had de jure and de facto command and control over the activities and operations of the Kamajors.”[36]

(ii) “. . . Fofana was the National Director of War of the CDF and Kondewa was the High Priest of the CDF. As such, together with Norman, Fofana and Kondewa were seen and known as the top leaders of the CDF. Fofana and Kondewa took directions from and were directly answerable to Norman. They took part in policy, planning and operational decisions of the CDF.”[37]

(iii) “. . . Fofana acted as leader of the CDF in the absence of Norman and was regarded as the second in command. As National Director of War, he had direct responsibility for implementing policy and strategy for prosecuting the war. He liaised with field commanders, supervised and monitored operations. He gave orders to and received reports about operations from subordinate commanders, and he provided them with logistics including supply of arms and ammunition. In addition to the duties listed above at the national CDF level, Fofana commanded one battalion of Kamajors.”[38]

(iv) “. . . Kondewa, as High Priest had supervision and control over all initiators within the CDF and was responsible for all initiations within the CDF, including the initiation of children under the age of 15 years. Furthermore, he frequently led or directed operations and had direct command authority over units within the CDF responsible for carrying out special missions.”[39]

(v) “. . . Norman, as National Coordinator of the CDF and Commander of the Kamajors knew and approved the recruiting, enlisting, conscription, initiation, and training of Kamajors, including children below the age of 15 years. . . . Norman, . . . Fofana, as the National Director of War of the CDF; and . . . Kondewa as the High Priest of the CDF, knew and approved the use of children to participate actively in hostilities.”[40]

(vi) “In the positions referred to in the aforementioned paragraphs, . . . Norman, . . . Fofana and . . . Kondewa, individually or in concert, exercised authority, command and control over all subordinate members of the CDF.”[41]

(vii) “The plan, purpose or design of . . . [these three] and subordinate members of the CDF was to use any means necessary to defeat the RUF/AFRC forces and to gain and exercise control over the territory of Sierra Leone. This included gaining complete control over the population of Sierra Leone and the complete elimination of the RUF/AFRC, its supporters, sympathizers, and anyone who did not actively resist the RUF/AFRC occupation of Sierra Leone. Each Accused acted individually and in concert with subordinates, to carry out the said plan, purpose or design.”[42]

(viii) “ . . [The three] by their acts or omissions are individually criminally responsible pursuant to Article 6.1 of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this indictment, which crimes each of them planned, instigated, ordered, committed, or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a common purpose, plan or design in which each Accused participated or were a reasonably foreseeable consequence of the common purpose, plan or design in which each Accused participated.”[43]

In addition, or alternatively, pursuant to Article 6(3) of the Statute, . . .[each of them] while holding positions of superior responsibility and exercising command and control over their subordinates, . . . [is] individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.[44]

17. The Trial Chamber found that Fofana and Kondewa were not guilty of crimes against humanity (murder and ‘other inhumane acts’ under Counts 1 and 3, respectively) because it was not proved beyond reasonable doubt that the civilian population was the primary object of the attack, although the requirement of a widespread attack was established.[45] It, however, found that the general requirements for war crimes and other serious violations of international humanitarian law were satisfied because an armed conflict occurred in Sierra Leone from March 1991 to January 2002, the alleged crimes were closely related to the armed conflict and the perpetrators were aware of the protected status of the victims who were either civilians or captured enemy combatants.[46]

18. The Appeals Chamber will consider the findings that led to the verdicts when it deals with the several grounds of appeal. It suffices to state that Fofana was found individually criminally responsible not as direct perpetrator but either as a secondary participant or as a person bearing superior responsibility, while the same can be said of Kondewa, except in respect of Count 8 where he was found guilty of enlisting child soldiers and in respect of Count 2 where he was found guilty of unlawful killing of a town commander in Talia (Base Zero).

19. On 2 August 2007, a majority of the Trial Chamber, Justice Thompson dissenting, found Fofana and Kondewa guilty under Counts 2 and 4 and convicted them of: violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment respectively, charged in Counts 2 and 4, respectively; and pillage and collective punishments charged in Counts 5 and 7, respectively.[47] Fofana and Kondewa were found not guilty of the crimes against humanity of murder and “other inhumane acts” charged in Counts 1 and 3, respectively; and, of acts of terrorism charged in Count 6.[48] A majority of the Trial Chamber, Justice Thompson dissenting, found Kondewa guilty of enlisting children under the age of 15 years into an armed group and/or using them to participate actively in hostilities as charged in Count 8 and convicted him accordingly.[49] The majority of the Trial Chamber, Justice Itoe dissenting, found Fofana not guilty of the same charge (Count 8).[50]

20. On 9 October 2007, the Trial Chamber sentenced Fofana and Kondewa to terms of imprisonment for all of the crimes for which they were convicted.[51]

21. Fofana was sentenced to six (6) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular murder, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 2); six (6) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 4); three (3) years imprisonment for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 5) and four (4) years imprisonment for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7).[52] The Trial Chamber ordered that the sentences shall be served concurrently[53] and shall take effect as from 29 May 2003, when Fofana was arrested and taken into the custody of the Special Court.[54]

22. Kondewa was sentenced to eight (8) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular murder, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 2); eight (8) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 4); five (5) years imprisonment for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 5); six (6) years imprisonment for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7); seven (7) years imprisonment for enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities, an other serious violation of international humanitarian law (Count 8).[55] The Trial Chamber ordered that the sentences shall be served concurrently[56] and shall take effect as from 29 May 2003, when Kondewa was arrested and taken into the custody of the Special Court.[57]

23. The Prosecution and Kondewa appealed and filed their respective Notices of Appeal on 23 October 2007.[58] There was no appeal by Fofana.

24. In its Notice of Appeal, the Prosecution filed ten (10) Grounds of Appeal. Kondewa filed six (6) Grounds of Appeal.[59]

25. Kondewa complained in Grounds 1, 2, 3 and 5 of his Grounds of Appeal, respectively, that the majority of the Trial Chamber erred both in law and in fact in finding that the Prosecution had proved beyond reasonable doubt: first, that he was individually criminally responsible as a superior, pursuant to Article 6(3) for the crimes committed in Bonthe Town and the surrounding areas under Counts 2, 4, 5 and 7; second, that he was individually criminally responsible pursuant to Article 6(1) for committing murder as a war crime as charged under Count 2 of the Indictment in Talia/Base Zero; third, that he was individually criminally responsible as a superior pursuant to Article 6(3) for pillage under Count 5 in the Moyamba District; and fourth, that he was individually criminally responsible pursuant to Article 6(1) for committing the crime of enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities.

26. In Ground 4 of his Grounds of Appeal, Kondewa complained that the majority of the Trial Chamber erred in law in failing to establish the correct mens rea requirement for aiding and abetting and the determination of individual criminal responsibility pursuant to Article 6(1) for Counts 2, 4, and 7 in Tongo Fields and in Ground 6 that the Majority of the Trial Chamber erred in law in entering cumulative convictions under Count 7 as well as under Counts 2 to 5.

27. The Prosecution by its Grounds of Appeal complained that the Trial Chamber erred in law and in fact in holding as follows: first, that “the evidence adduced does not prove beyond a reasonable doubt that the civilian population was the primary object of the attack” (Ground 1); second, that the evidence adduced did not establish beyond reasonable doubt: (i) that Fofana and Kondewa bear individual criminal responsibility under Article 6(1) of the Statute for the planning, instigating or otherwise aiding and abetting in the planning, preparation or execution of any of the criminal acts which the Trial Chamber found were committed in Kenema District (Ground 3), and in the towns of Tongo Field, Koribondo and Bo District (Ground 4) during the timeframe charged in the Indictment; (ii) that Fofana and Kondewa bear individual criminal responsibility under Article 6(3) of the Statute for those crimes committed in Kenema District (Ground 3); and (iii) that Fofana planned, ordered or committed the crime of enlisting children under 15 years of age into armed forces or groups, or their active use in hostilities and his individual criminal responsibility pursuant to Article 6(3) of the Statute as a superior for the enlistment or use of child soldiers to participate actively in hostilities (Ground 5).

28. The Prosecution further alleged a number of errors of law and of fact: (i) in relation to the Trial Chamber’s acquittal of Fofana and Kondewa (on Count 6) of terrorism as a war crime (Ground 6) and (ii) in refusing to consider acts of burning for the purposes of the war crime of pillage as charged under Count 5 of the Indictment (Ground 7).

29. In Grounds 8 and 9 the Prosecution alleged mixed errors of law and fact and of procedure, respectively, in that the Trial Chamber denied leave for the Prosecution to amend the Indictment in order to add four new counts of sexual violence (Ground 8) and in preventing the Prosecution from “leading, eliciting or adducing” evidence of sexual violence (Ground 9).

30. Finally, in its Ground 10, the Prosecution, in respect of its appeal against sentence, complained that the Trial Chamber erred in law and in fact and committed a procedural error, “in that there has been a discernible error in the exercise of the Trial Chamber’s sentencing discretion” in the sentencing of Fofana and Kondewa.

31. Before the Appeals Chamber embarks on a detailed consideration of the Parties’ Grounds of Appeal, it is expedient to state at the threshold, albeit in general terms, some of the principles of appellate review that will guide it.

32. In regard to errors of law: On appeal, pursuant to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence (“Rules”),[60] only arguments relating to errors in law that invalidate the decision of the Trial Chamber would merit consideration. Some International Criminal Tribunals hold the view that in exceptional circumstances, the Appeals Chamber may consider legal issues raised by a party or proprio motu although such may not lead to the invalidation of the judgment if it is nevertheless of general significance to the Tribunal’s jurisprudence.[61]

33. In regard to errors of fact: On appeal where errors of fact are alleged also pursuant to Article 20 of the Statute and Rule 106 of the Rules, the Appeals Chamber will not lightly overturn findings of fact reached by a Trial Chamber. Where it is alleged that the Trial Chamber committed an error of fact, the Appeals Chamber will give a margin of deference to the Trial Chamber that received the evidence at trial. This is because it is the Trial Chamber that is best placed to assess the evidence, including the demeanour of witnesses. The Appeals Chamber will only interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[62] The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence.[63]

34. The Appeals Chamber adopts the statement of general principle contained in the ICTY Appeals Chamber decision in Kupreškić, as follows:

“. . . the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is wholly erroneous may the Appeals Chamber substitute its own finding for that of the Trial Chamber.”[64]

35. In regard to procedural errors: Although not expressly so stated in Article 20 of the Statute, not all procedural errors vitiate the proceedings. Only errors that occasion a miscarriage of justice would vitiate the proceedings. Such are procedural errors that would affect the fairness of the trial. By the same token, procedural errors that could be corrected or waived or ignored (as immaterial or inconsequential) without injustice to the parties would not be regarded as procedural errors occasioning a miscarriage of justice.

36. In regard to appellate review of the exercise of discretionary powers by the Trial Chamber: The guiding principles can be succinctly stated. The Trial Chamber’s exercise of discretion will be overturned if the challenged decision was based: (i) on an error of law; or (ii) on a patently incorrect conclusion of fact; or (iii) if the exercise of discretion was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion. The scope of appellate review of discretion is, thus, much limited: even if the Appeals Chamber does not agree with the impugned decision, it will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.[65] Where the issue on appeal is whether the Trial Chamber correctly exercised its discretion in reaching its decision the Appeals Chamber will only disturb the decision if an appellant has demonstrated that the Trial Chamber made a discernible error in the exercise of discretion.[66] A Trial Chamber would have made a discernible error if it misdirected itself as to the legal principle or law to be applied, took irrelevant factors into consideration, failed to consider relevant factors or failed to give them sufficient weight, or made an error as to the facts upon which it has exercised its discretion.[67]

A. Prosecution’s Third and Fourth Grounds of Appeal and Kondewa’s Fourth Ground of Appeal: Individual Criminal Responsibility Pursuant to Article 6(1) of the Statute

37. The Prosecution’s Third and Fourth Grounds of Appeal and Kondewa’s Fourth Ground of Appeal concern the individual criminal responsibility of Fofana and Kondewa pursuant to Article 6(1) of the Statute for crimes in Tongo Town, Koribondo, Bo District and Kenema District in January and February 1998. As these grounds of appeal are interrelated, the Appeals Chamber will consider them together with more detailed accounts of the respective submissions in the following subsections.

38. In relation to the second attack in early January 1998 and the third attack on 14 February 1998 on Tongo Town, the majority of the Trial Chamber, Justice Thompson dissenting, found Fofana and Kondewa guilty pursuant to Article 6(1) of the Statute of aiding and abetting violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7).[68]

39. In Kondewa’s Fourth Ground of Appeal, he submits that the majority of the Trial Chamber erred in finding him responsible for aiding and abetting the crimes committed during the second and third attacks on Tongo Town.[69] The Prosecution, on the other hand, argues in its Fourth Ground of Appeal that, with regard to the crimes committed in Tongo, the Trial Chamber erred in not finding Kondewa responsible for instigating[70] and in not finding Fofana responsible for instigating and planning.[71]

40. In relation to the attacks on Koribondo on 13 February 1998, and on Bo District on 15 February 1998, the Trial Chamber found that the Kamajors had committed violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7).[72] The Trial Chamber additionally found the commission of pillage (Count 5) by the Kamajors during the attack on Bo District.[73] The majority of the Trial Chamber, Justice Thompson dissenting, found Fofana responsible as a superior pursuant to Article 6(3) in relation to the attacks in Koribondo and Bo District.[74] The Trial Chamber, however, acquitted Kondewa under Article 6(1) and Article 6(3) in relation to the attacks on Koribondo and Bo District.[75] In relation to the attack on Kenema District on 15 February 1998, the Trial Chamber found that criminal acts had been committed by the Kamajors without specifying which crimes these acts constituted[76] and acquitted Fofana and Kondewa.[77]

41. In its Third and Fourth Grounds of Appeal, the Prosecution submits that, subsequent to the attacks on Tongo, the attacks on Koribondo, Bo District and Kenema District in mid-February 1998 were all part of the same planned “all-out offensive.”[78] The Prosecution, therefore, submits that the Trial Chamber erred in not finding Fofana liable for planning the crimes committed in Koribondo, Bo District and Kenema District,[79] or, in the alternative, for aiding and abetting the crimes committed in those locations.[80]

42. The Appeals Chamber notes that the Prosecution argues that the attacks in Bonthe District were part of the same “all-out offensive,” but does not submit that the Trial Chamber erred in not finding Fofana liable for planning the crimes committed in Bonthe District.[81] The Prosecution only generally states that “the only conclusion open to any reasonable trier of fact is that the attacks on Koribondo, Bo District, Kenema District and Bonthe District, which all occurred around the same time . . . were all part of the same ‘all-out offensive’ announced by Norman at the January 1998 Passing Out Parade.”[82] The Prosecution also stated that “the only conclusion open to any reasonable trier of fact is that it was part of the plan that crimes would be committed during the attacks on Kenema and Bonthe” and that “no reasonable trier of fact could conclude that commission of crimes was planned in the case of Koribondo and Bo District, but somehow spontaneous and unplanned in the case of Kenema and Bonthe District.”[83] Because the Prosecution’s concluding arguments include no mention of Bonthe District, the Appeals Chamber finds that the Prosecution has not met its burden of advancing the reasons for the alleged error and the Appeals Chamber will therefore not examine whether the Trial Chamber erred in relation to Bonthe District.[84]

43. The Trial Chamber found that the Kamajors launched three attacks on Tongo Town.[85] The first attack was in late November or early December 1997.[86] Between 10-12 December 1997, a passing out parade was held at Base Zero, the headquarters of the CDF High Command (“First Passing Out Parade”).[87] Norman, who was the National Coordinator for the CDF, spoke to the Kamajors and commanders,[88] and both Fofana and Kondewa attended this parade.[89] Norman said that “the attack on Tongo will determine who the winner or the looser of the war would be”[90] and that “there is no place to keep captured or war prisoners like the juntas, let alone their collaborators.”[91] Norman further said that ‘“[if] the international community is condemning human rights abuses [...] then I take care of the human left abuses,’”[92] which he clarified to mean that “‘[...] any junta you capture, instead of wasting your bullet, chop off his left [hand] as an indelible mark [...] to be a signal to any group that will want to seize power through the barrels [sic] of the gun and not the ballot paper [;] [w]e are in Africa, we want to practice democracy.’”[93] The Trial Chamber found that he instructed and encouraged the Kamajors to kill captured enemy combatants and “collaborators,” to inflict physical suffering or injury upon them and to destroy their houses.[94]

44. After Norman instructed the Kamajors to commit unlawful acts, Fofana, as Director of War, addressed the fighters, saying “[n]ow, you’ve heard the National Coordinator . . . any commander failing to perform accordingly and losing your own ground, just decide to kill yourself there and don’t come to report to us.”[95]

45. Further, following the speeches of Norman and Fofana, Kondewa spoke to the Kamajors and said “a rebel is a rebel; surrendered, not surrendered, they’re all rebels [...t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel.” He then said “I give you my blessings; go my boys, go.”[96]

46. Following the First Passing Out Parade, Norman held a commanders’ meeting in the same month at which plans to attack Tongo Town were discussed and at which Norman provided further instructions for the Tongo and Black December operations.[97] Those present at this meeting included Fofana, Kondewa, Mohamed Orinco Moosa (the National Deputy Director of War), Albert J. Nallo (Deputy National Director of Operations and Director of Operations, Southern Region), KG Samai, Ngobeh (the district grand Kamajor commander), and some commanders from the Tongo area, such as Musa Junisa, Witness TF2-079, Vandi Songo and some members of the War Council.[98] At the meeting, Norman further reiterated and clarified his orders and expanded upon them to include looting.[99] He repeated that whoever took Tongo would win the war and that it should be taken at all costs. Norman told them not to spare anyone working with or mining for the juntas. Norman also said that all collaborators should forfeit their properties and be killed.[100] Everyone in the meeting contributed to the discussion, including Fofana and Kondewa.[101] Norman then ordered Fofana to provide logistics for the operation.[102]

47. The Prosecution submits that the Trial Chamber erred in finding that the elements of instigating were not satisfied on the part of Fofana for the crimes committed during the second and third attacks on Tongo Town, and that the full responsibility of Fofana was therefore not reflected.[103] The Prosecution submits that in finding that Fofana’s speech had a substantial effect on the commission of the crimes, the Trial Chamber effectively found that the actus reus for instigating was satisfied.[104] Further, the Prosecution submits that in the context of Fofana’s seniority at Base Zero as part of what was referred to as the “Holy Trinity,” his statement that any commander failing to perform according to Norman’s instructions should kill himself and not report to Base Zero,[105] could only be understood as a direct threat to the Kamajors that they would face death or other serious consequences if they failed to carry out Norman’s orders.[106]

48. With regard to the mens rea required for instigating, the Prosecution submits that Fofana’s intent or knowledge that crimes would likely be committed may be inferred from his substantial contribution to the planning, which was done with knowledge of the crimes which Norman had ordered in the execution of their plan.[107] The Prosecution further argues that based on Fofana’s speech at the December 1997 Passing Out Parade, which the Trial Chamber found to have encouraged the killing of civilians by the Kamajors, it may be inferred that Fofana acted with direct intent.[108]

49. Fofana submits that the actus reus required for aiding and abetting is different from that of instigation and that the Prosecution’s arguments are therefore misleading.[109] He further submits that the Trial Chamber found that in order to prove the actus reus of instigation “a causal relationship between the instigation and the perpetration must be demonstrated.”[110] Thus, for an aider and abetter to be convicted of instigation, his instigation must lead to the perpetration of the crime, and may not merely have a substantial effect on its outcome.[111]

50. Fofana, therefore, asserts that none of the factual findings referred to by the Prosecution establishes a direct causal link between Fofana’s conduct and the crimes found by the Trial Chamber to have been perpetrated in Tongo Town.[112] Nothing in Fofana’s speech at the First Passing Out Parade in December 1997 could have demonstrated his intent to provoke or induce the commission of the crimes outlined by the Prosecution,[113] or could have been understood by the Kamajors as a direct threat that they would face death or other serious consequences if they failed to carry out Norman’s orders.[114] Thus, Fofana submits that “it is not the case that the only inference that can be drawn from the circumstances is that Fofana induced or provoked the Kamajors to commit crimes.”[115] The more probable inference is that he encouraged the Kamajors to fight and capture Tongo Town.[116]

51. The Trial Chamber held that the actus reus of instigating requires “an act or omission, covering both express and implied conduct of the Accused, which is shown to be a factor substantially contributing to the conduct of another person committing the crime,”[117] and that there must be a “causal relationship between the instigation and the perpetration of the crime . . . although it is not necessary to prove that the crime would not have occurred without the Accused’s involvement.”[118] The Trial Chamber also held that the mens rea of instigating is an intention “to provoke or induce the commission of the crime,” or a “reasonable knowledge that a crime would likely be committed as a result of that instigation.”[119] Neither of the parties takes issue with the Trial Chamber’s definition of instigation.

52. The Trial Chamber found that Fofana’s speech at the First Passing Out Parade substantially contributed to the commission of crimes by the Kamajors in Tongo Town and thereby satisfied the actus reus of aiding and abetting. The parties have not challenged this finding. Both aiding and abetting and instigating require the actus reus to have a substantial effect on the perpetration of the crime.

53. The Trial Chamber concluded that Fofana’s actions had a substantial effect on the perpetration of these crimes.[120] The Trial Chamber found that “Fofana’s speech at the [first] passing out parade constitutes aiding and abetting only of the preparation [sic][121] of those criminal acts which were explicitly ordered by Norman, namely, killing of captured enemy combatants and ‘collaborators’, infliction of physical suffering or injury upon them and destruction of their houses.”[122]

54. The Prosecution argues that because the actus reus of aiding and abetting is satisfied, the actus reus is also satisfied for instigating. However, the Trial Chamber found, relying on ICTY Appeals Chamber jurisprudence, that unlike the actus reus of instigating, the actus reus of aiding and abetting does not require a causal link between the act of aiding and abetting and the commission of the crime.[123] The Appeals Chamber holds that the actus reus of instigating requires a causal link which aiding and abetting does not and accordingly disagrees with the Prosecution’s proposition.

55. Fofana’s speech at the First Passing Out Parade at Base Zero was removed both temporally and geographically from the unlawful acts committed by the Kamajors in Tongo Town in January 1998. This alone would not be enough to deny a causal link between the speech and the crimes alleged. However, in this case the Appeals Chamber is of the view that there is insufficient evidence to show how Fofana’s words influenced the perpetration of crimes which took place at a significantly different place and time. Fofana’s speech may have substantially contributed to the military effort, but not to the crimes as such. Therefore, the Appeals Chamber is satisfied that the Trial Chamber was not in error in finding that Fofana’s speech did not have a substantial effect on the perpetration of the crimes or that a causal relationship did not exist and that the actus reus for instigating was, consequently, not satisfied.

56. With regard to the mens rea required for “instigating,” the Prosecution submits that Fofana’s intent or knowledge that crimes would likely be committed may be inferred from his substantial contribution to the planning, which was done with knowledge of the crimes which Norman had ordered in the execution of the plan. Fofana’s words “[n]ow you’ve heard the National Coordinator [. . . ] any commander failing to perform accordingly and losing your own ground, just decide to kill yourself there and don’t come to report to us” are ambiguous and may be interpreted not as approving Norman’s unlawful orders, but rather as an appeal to each of the commanders to fight hard and not loose his ground. Further, Fofana’s call “to destroy the soldiers finally from where they were [. . .] settled”[124] was directed at the military campaign and does not include any incitement to perpetrate unlawful acts. This leads the Appeals Chamber to conclude that there were other possible interpretations of the evidence than the one suggested by the Prosecution. The Appeals Chamber, therefore, finds that a reasonable trier of fact could have found that Fofana did not have the requisite mens rea.

57. Consequently, the Appeals Chamber finds that the Trial Chamber did not err in failing to convict Fofana for instigating the commission of crimes in Tongo Town. The Prosecution’s Fourth Ground of Appeal, therefore, fails in this respect.

58. The Prosecution does not take issue with the Trial Chamber’s pronouncement on the law on planning, and submits that because planning may be undertaken by one or more persons, an accused does not have to have been responsible for all of the planning.[125] The Prosecution notes that the Trial Chamber found that “in the absence of any evidence showing how Fofana contributed to the discussion and decision at th[e] meeting [. . . ] there is no evidence to prove beyond reasonable doubt”[126] that Fofana planned the commission of the crimes.[127] The Prosecution submits that the Trial Chamber erroneously suggested that an accused can only be convicted of planning where there is direct evidence of the specific contribution that the accused made to the plan in question.[128] The Prosecution argues that even if the details of an accused’s specific contribution to planning is unknown, the accused may still satisfy the actus reus for planning if the evidence shows that the accused participated substantially in the planning of the crimes, and that the planning substantially contributed to the criminal conduct.[129]

59. In this case, the Prosecution submits that given Fofana’s “seniority as one of the top three figures at Base Zero, and given his express responsibility as Director of War for the planning of operations, no reasonable trier of fact could have concluded that Fofana may have been only a ‘passive’ participant at all of these meetings.”[130] The Prosecution also asserts that no reasonable trier of fact could have failed to infer that Fofana possessed the requisite mens rea for instigating and that he made a substantial contribution to planning “in the very clear knowledge” that the crimes which Norman had ordered were to be committed in the execution of the plan.[131]

60. Fofana submits that throughout the trial the Prosecution adduced no evidence to prove beyond reasonable doubt that he planned the crimes.[132] Fofana claims that on appeal the Prosecution now seeks to prove that he planned these crimes by circumstantial evidence.[133] However, he argues that there is no evidence showing the specifics of what was discussed at the meetings or of whether the planning of the attacks was part of the agenda of the meetings, especially given that the Trial Chamber held that there was no evidence to show, what, if any, contribution Fofana made at these meetings.[134] Fofana argues that his role as a key element of the CDF leadership structure does not necessarily indicate that he was involved in the planning or execution of criminal activities.[135] In addition, Fofana argues that “knowledge of crimes committed later by the Kamajors cannot be imputed to [him] by reference.”[136]

61. Regarding the requisite actus reus, given the absence of factual findings by the Trial Chamber concerning the nature of Fofana’s participation in the commanders’ meetings in December 1997, the Appeals Chamber finds that it was open to a reasonable trier of fact to conclude that evidence of Fofana’s presence did not by itself amount to planning. Although Fofana participated in these commanders’ meetings and held a position of responsibility as Director of War, it was open to a reasonable trier of fact to conclude that this evidence alone did not prove beyond reasonable doubt that he participated in the planning of the criminal conduct which took place in Tongo Town.

62. Regarding the requisite mens rea, the Trial Chamber found that Fofana participated in the commanders’ meetings. However, the Appeals Chamber notes that the findings did not indicate that he participated at those meetings in the planning of unlawful acts rather than in the successful completion of military operations.

63. The Appeals Chamber therefore, concludes that the evidence did not disclose beyond reasonable doubt that Fofana possessed the requisite mens rea for planning violence to life, health and physical or mental well-being of persons, in particular murder, punishable under Article 3.a. of the Statute, violence to life, health and physical or mental well-being of persons, in particular cruel treatment, punishable under Article 3.a. of the Statute as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute.

64. The Appeals Chamber finds that in this respect, the Prosecution’s Fourth Ground of Appeal must fail.

65. In Kondewa’s Fourth Ground of Appeal, he submits that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law in finding that the evidence fulfilled the mens rea and actus reus for aiding and abetting the crimes of violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7) in Tongo Town.[137] Regarding the requisite actus reus, Kondewa argues that his statement at the First Passing Out Parade that “a rebel is a rebel; surrendered, not surrendered, they’re all rebels . . . [t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel” did not have a ‘substantial effect’ on the perpetration of crimes, as required by the legal standard set forth by the Trial Chamber.[138] Kondewa does not take issue with the legal standard,[139] but instead submits that according to the jurisprudence of the ICTY and the ICTR, his words fell short of the “substantial effect standard” under which acts of aiding and abetting must have a substantial effect upon the perpetration of a crime.[140] Kondewa submits that it is unreasonable to suggest that his “words alone had a substantial effect on the perpetration of crimes that took place more than one month later in another geographic area.”[141]

66. Regarding the requisite mens rea, Kondewa argues that the Trial Chamber erred in finding that he was aware that his words would assist in the commission of subsequent crimes in Tongo and that he knew of previous criminal activity by the Kamajors in Tongo.[142] Kondewa argues that the Trial Chamber adopted an approach to requisite standards relating to knowledge which is less strict than that of the other ad hoc Tribunals.[143] Kondewa further argues that in establishing the requisite mens rea, the Trial Chamber erroneously found that Kondewa knew of the Kamajors’ previous criminal conduct based on a report sent to Base Zero, even though the Trial Chamber had found elsewhere in the Trial Judgment that this report was only given to Norman and Fofana and not to Kondewa.[144] Kondewa submits that he never received this report and there was no other evidence demonstrating his knowledge of previous criminal activity by the Kamajors in Tongo.[145] Therefore, Kondewa submits that no reasonable trier of fact could have found that the mens rea was established.[146]

67. In its response brief, the Prosecution submits that the Trial Chamber’s finding regarding Kondewa’s actus reus was based not on his words alone, but on the facts and circumstances of the case as a whole.[147] The Prosecution argues that the Trial Chamber’s finding was based on its evaluation of the effect of those words on the perpetrators in the context of Kondewa’s influence over the Kamajors, particularly given his position as one in what was referred to as the “Holy Trinity.”[148]

68. It further submits that the case law of the Appeals Chambers of ICTY and ICTR provides legal precedent for finding that words of encouragement made by an accused before the commission of a crime and at a place remote from the crimes, may have a “substantial effect.”[149] Further, the ICTR cases referred to by Kondewa are not helpful because they are primarily Trial Chamber judgments relating to direct and public incitement to commit genocide and complicity in genocide, which are modes of liability distinct from aiding and abetting.[150]

69. Finally, the Prosecution argues that Kondewa’s mens rea can be deduced not only from his knowledge of crimes previously committed by the Kamajors, but also from Norman’s unlawful instructions at the First Passing Out Parade.[151] It argues that on the basis of the knowledge of Norman’s instructions alone, a reasonable trier of fact could conclude that Kondewa knew that the Kamajors would probably commit crimes during their attacks on Tongo Town.[152]

70. Kondewa submits that the Trial Chamber committed an error of law. However, he states that he agrees with the legal requirements of aiding and abetting found by the Trial Chamber. Further, he agrees that the applicable standard for actus reus is that of “substantial effect.” His challenge is therefore not directed at the legal standard as such but rather at the Trial Chamber’s application of the facts.[153] The Appeals Chamber, therefore, is of the view that Kondewa raises an error of fact rather than law, and his arguments will be considered in this context.

71. Although not specifically raised in this appeal, the Appeals Chamber is of the view that it is necessary to determine whether, as a matter of law, words of encouragement and support may have a “substantial effect” even though they were spoken at a time and place that are temporally and geographically removed from the commission of the crimes. The Trial Chamber held that the actus reus of aiding and abetting may occur before, during, or after the perpetration of the crime and at a location geographically removed from the place where the crime is committed, if the act of the aider and abetter has a substantial effect on the perpetration of the crime.[154] In this regard, the Trial Chamber relied on the ICTY Appeals Chamber decision in Blaškić which found that the acts of aiding and abetting “may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.”[155] Further, it is recognized in the jurisprudence of other ad hoc Tribunals that “encouragement” and “moral support” are two forms of conduct which may lead to criminal responsibility for aiding and abetting a crime.[156]

72. The Appeals Chamber agrees that “encouragement” and “moral support” may constitute the actus reus and that acts of aiding and abetting can be made at a time and place removed from the actual crime.

73. In regard to the actus reus for aiding and abetting, the Trial Chamber found that Kondewa’s speech at the First Passing Out Parade had a substantial effect on the perpetration of the crimes in Tongo.[157] The Appeals Chamber recalls that the Trial Chamber found that at the First Passing Out Parade Norman instructed the Kamajors “to kill captured enemy combatants and ‘collaborators’ to inflict physical suffering or injury upon them and to destroy their houses.”[158] After Norman and Fofana spoke “all the fighters looked at Kondewa, admiring him as a man with mystic powers, and he made the last comment saying that the time for surrender of the rebels had long been exhausted and that they did not need any surrendered rebels.”[159] The Trial Chamber then found that in uttering these words Kondewa effectively supported Norman’s instructions and encouraged the Kamajors to execute Norman’s unlawful orders.[160] The Trial Chamber also noted that no fighter would go to war without Kondewa’s blessing because they believed that Kondewa transferred his mystical powers to commit such acts.[161]

74. In addition to his spiritual responsibilities, Kondewa was, together with Norman and Fofana, the three people regarded as what was referred to as the “Holy Trinity” at Base Zero; the three of them were the key and essential components of the leadership structure[162] and were the three people who according to the Trial Chamber actually made the decisions and nobody could make a decision in their absence.[163]

75. Even though the First Passing Out Parade in December 1997 was temporally and geographically removed from the second and third attacks on Tongo Town, the Appeals Chamber observes that one of the purposes of the Passing Out Parade was for Norman to give instructions to the Kamajors for the second and third attacks on Tongo Town,[164] not just instructions concerning unlawful acts. For this reason temporal and geographic remoteness is not of significance to the question of whether Kondewa’s speech substantially contributed to the perpetration of the crimes. Thus, in the light of all the circumstances of this case, a reasonable trier of fact could have concluded that the only inference available on the evidence was that through his blessings and speech at the First Passing Out Parade Kondewa substantially contributed to the perpetration of the crimes in Tongo Town.

76. Regarding the requisite mens rea, the Appeals Chamber agrees with Kondewa that the Trial Chamber erroneously relied on the fact that he had received the report to Base Zero of the Kamajors’ previous crimes in Tongo. On the contrary, the Trial Chamber found that Norman and Fofana received this report, not Kondewa.[165] Thus, the Appeals Chamber finds that the Trial Chamber erred in fact in relying on this report.[166]

77. It is the unchallenged finding of the Trial Chamber, that Norman at the Passing Out Parade ordered the Kamajors to commit criminal acts in Tongo, and that Kondewa who spoke after Norman, knew of the orders of Norman when he said: “a rebel is a rebel; surrendered, not surrendered, they’re all rebels . . . [t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel ... I give you my blessings; go my boys, go.”[167] The Trial Chamber further found that “no fighter would go to war without Kondewa’s blessings because they believed that Kondewa transferred his mystical powers to them and made them immune to bullets.”[168]

78. On these findings the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to conclude that Kondewa by his words of encouragement aided and abetted the commission of criminal acts ordered by Norman in Tongo.

79. The Appeals Chamber therefore concludes, Justice King dissenting, that the Trial Chamber did not err in finding Kondewa responsible for aiding and abetting the commission of crimes in Tongo Town. The Appeals Chamber accordingly finds, Justice King dissenting, that Kondewa’s Fourth Ground of Appeal must fail and upholds his conviction in relation to violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively).

80. The Prosecution submits that in finding that the elements of instigating were not satisfied, the Trial Chamber erred in fact and in law in its approach to the evaluation of the evidence concerning Kondewa’s involvement in the crimes committed in Tongo Town.[169] The Prosecution argues that the actus reus of instigating has effectively been satisfied due to the Trial Chamber’s finding that the actus reus of aiding abetting was satisfied because “Kondewa’s words had a substantial effect on the perpetration of those criminal acts.”[170]

81. Regarding the requisite mens rea, the Prosecution asserts that based on evidence accepted by the Trial Chamber, the only conclusion open to any reasonable trier of fact is that Kondewa had the necessary mens rea for instigating.[171] The Prosecution specifically points to the Trial Chamber’s finding that Kondewa expressly encouraged the crimes,[172] and argues that on occasions prior to the First Passing Out Parade, Kondewa threatened others, including members of the War Council, who accused the Kamajors of committing crimes.[173] In addition, while at Base Zero, Kondewa personally killed a civilian and ordered the killing of another civilian.[174] The Prosecution submits that although this evidence is not directly related to Tongo, it shows that Kondewa supported or advocated the crimes committed by the Kamajors in Tongo.[175]

82. Kondewa responds that he is not liable for instigating because a causal connection has not been shown between his speech at the First Passing Out Parade and the crimes committed in Tongo.[176] He submits that the Prosecution incorrectly stated: that the actus reus of instigating and aiding and abetting is the same;[177] that the actus reus of these forms of liability is different because proof of a cause-effect relationship is necessary for instigating but not for aiding and abetting;[178] that there is no evidence that the Kamajors who were present at the First Passing Out Parade were the same Kamajors who subsequently committed crimes in Tongo Town;[179] and finally that there is no evidence that any Kamajor was prompted to commit any crime on the basis of his ambiguously phrased words, which he uttered six weeks earlier.[180]

83. The Trial Chamber’s statement of the elements of the actus reus and the mens rea of instigating has already been noted in paragraph 51.

84. The Trial Chamber found Kondewa’s speech at the First Passing Out Parade to have had a substantial effect on the perpetration of crimes in Tongo Town and thereby satisfied the actus reus of aiding and abetting. Both aiding and abetting and instigating require the actus reus to have a substantial effect on the perpetration of the crime. A finding that an accused’s conduct had a “substantial effect” for the purpose of aiding and abetting will therefore normally also satisfy the “substantial effect” requirement for the purpose of instigating.

85. In this case, in order to show a causal link between Kondewa’s speech and the crimes committed in Tongo Town, the Prosecution must lead evidence to show that the Kamajors who were present at the First Passing Out Parade at which Kondewa’s speech was made were the same Kamajors who subsequently committed the crimes in Tongo Town. There was no such evidence before the Trial Chamber. For this reason the Appeals Chamber finds that “instigation” for the crimes charged in Tongo Town was not proved.

86. Consequently, the Prosecution’s Fourth Ground of Appeal fails in this respect.

87. The Trial Chamber found that Norman, Fofana and Kondewa also addressed the Kamajors at a Second Passing Out Parade in early January 1998 regarding an “all-out offensive.”[181] After thanking the Kamajors for the training they had undergone, and talking about the prior and pending operations, Norman said that he had given instructions for the pending operations which the Kamajors should follow.[182] Norman also said that “whoever knows that he is used to fighting with the cutlass, it is time for him to take up the cutlass [; w]hoever knows that he’s used to fighting with a gun, it is time for him to take up the gun [; w]however knows that he’s used to fight with a stick, it is time to him to take up his stick.”[183]

“[T]the advice that Pa Norman had given to us, that the training that we underwent for a long time, the time has come for us to implement what we’ve learned. Now that we have received the order that we shall attack the various areas where the juntas are located, they have done a lot for the trainees. They’ve spent a lot on them. So any commander, if you are given an area to launch an attack and you fail to accomplish that mission, do not return to Base Zero.”[184]

Fofana further told the fighters “to attack the villages where the juntas were located and ‘to destroy the soldiers finally from where they were . . . settled.’”[185] Fofana also said that “the failure to take Koribondo was a ‘disgrace to the Kamajors that [sic] were [sic] close to Base Zero because . . . medicine that is given to Kamajors comes from there [and] [t]hat’s where they come from to attack Koribondo [sic] many [times].’”[186] Finally, he said that “. . . this time around, he wants them to go and capture Koribondo.”[187]

89. At the same meeting Kondewa spoke, saying “I am going to give you my blessings [... and] the medicines, which would make you to be fearless if you didn’t spoil the law.”[188] Kondewa also said that “all of his powers had been transferred to them to protect them, so that no cutlass would strike them and that they should not be afraid.”[189] After this passing out parade, Norman said that a commanders’ meeting would be held where he would reveal which operations were going to be undertaken.[190]

90. In the evening of the same day as the passing out parade, Norman held a commanders’ meeting regarding Koribondo at which Fofana, Kondewa, Joe Tamidey and Bobor Tucker were present.[191] At this meeting Norman said that “they should take Koribondo ‘at all costs’ because they had already spent a lot on Koribondo” and that “Koribondo had been attacked three or four times before without the CDF taking it.”[192] Norman told the commanders that “when they got to Koribondo not to ‘leave any house or living thing there, except mosque, church, the barri and the school.’”[193] He also said that “this time they should destroy or burn everything in the town and that anyone left in Koribondo should be termed an enemy or a rebel and killed since they had been forewarned of such consequences.”[194]

91. On the same day as the Second Passing Out Parade and the commanders’ meeting regarding Koribondo, Norman held a second commanders’ meeting concerning Bo District.[195] The meeting was attended by Fofana, Kondewa, the War Council and commanders such as James Kaillie, Battalion Commander from Bumpeh and Joseph Lappia, Deputy Battalion Commander from Bumpeh.[196] In assigning the commander for the attack on Bo Town, Norman told the commanders to kill enemy combatants and people who had connections with or supported the rebels, otherwise known as “collaborators,” and to burn down houses and loot big shops.[197] In preparation for the attack on Bo Town, Norman told the commanders to attack Kebi Town[198] and “to bring something back to prove that they had attacked Kebi Town.” Fofana provided the commanders with arms, ammunitions and a vehicle.[199]

92. Norman also met with Nallo, who had done all of the planning for the Koribondo attack and had submitted it to Fofana, the Director of War, who submitted it to Norman. Norman stated that when Nallo goes to Koribondo anyone he met there should be killed because they were all spies and collaborators and “nothing should be left ‘not even a farm’ or ‘fowl.’” Nallo was given petrol for the job.[200] The Trial Chamber found that “[s]ome specific names were mentioned: Shekou Gbao, the driver, should be killed and his compound burnt because he was giving his vehicle to the juntas.”[201] In addition, Norman told Nallo that “the house of Mike Lamin’s father was also to be burnt because Mike Lamin was RUF.”[202] “Mr Biyo, a driver, should also have his compound burnt.”[203]

“Norman told Nallo that he should loot the Southern Pharmacy and bring the medicines to Norman. He also told Nallo to kill Paramount Chief Veronica Bagni of Valunia chiefdom, because she was against the Kamajor movement; JK (Kpundoh) Boima III, Paramount Chief of Bo Kakua; Madam Tuma Alias, chairlady of Bo Town Council, because she used ‘to collect [. . . ] market dues’; Provincial Secretary Lansana Koroma; MB Sesay because he gave money to the juntas and prepared the ronko which the juntas wore so that they could not be differentiated from the Kamajors. MB Sesay should also have his house looted and burnt. Nallo was to kill Ali Fataba and burn his house because he was a collaborator who supplied fuel to the juntas. He should kill Cecil Hanciles for liaising between the juntas and the civilians. He was to kill Brima Tolli, if he saw him, and to burn his house and loot his property because the juntas ate and spent time at the house. Norman ordered Nallo to kill the police officers who used to work under the AFRC junta. Nallo carried out the orders as far as burning and looting but did not see most of the people. He would have killed them had he seen them because the law given by the National Coordinator was that if Kamajors did not follow their orders they would cut off your ear or kill you.”[204]

94. The Prosecution submits that the Trial Chamber erred in finding Fofana not liable for planning the unlawful acts committed during the attacks on Koribondo, Bo District and Kenema District.[205] The Prosecution submits that

“the only conclusion open to any reasonable trier of fact on the findings of the Trial Chamber and the evidence accepted, is that the attacks on Koribondo, Bo District and Kenema District were part of the plan for the ‘all-out offensive’ announced at the January 1998 passing out parade, and that it was part of that plan that crimes would be committed in the course of that offensive (in particular, the killing of civilians considered or suspected of being ‘collaborators’ and the burning of their houses), and that the crimes were in fact perpetrated pursuant to that plan.”[206]

95. The Prosecution argues that considering Fofana’s position of seniority at Base Zero and his express responsibility as Director of War for planning operations, no reasonable trier of fact could conclude that Fofana was only a passive participant at the commanders’ meetings.[207] The Prosecution argues that given that Nallo, who initially did the planning, submitted the plan to Fofana who then submitted it to Norman, the only conclusion open to any reasonable trier of fact is that Fofana was an active participant at the commanders’ meetings.[208] Thus, the Prosecution argues that “even if Fofana did not expressly plan the details of crimes to be committed in these attacks, he participated in the planning of attacks that he knew were to involve the commission of crimes.”[209]

96. Fofana responds that his presence at the January 1998 commanders’ meetings did not constitute planning or aiding and abetting because there was no evidence of what took place at these meetings.[210] In addition, evidence of his role and responsibilities within the CDF leadership does not establish his involvement in planning or aiding and abetting criminal activities.[211] Fofana also responds that his provision of ammunition did not constitute aiding and abetting because the evidence does not demonstrate that the Kamajors used “exactly the same logistics that were supplied or provided” by him to attack Kebi Town.[212]

97. Given the absence of factual findings by the Trial Chamber concerning the nature of Fofana’s participation in the January 1998 commanders’ meetings, the Appeals Chamber finds that it was open to a reasonable trier of fact to conclude that evidence of Fofana’s presence at these meetings does not amount to planning.[213] Although Fofana attended these meetings and held a position of responsibility as Director of War, it was reasonable for the Trial Chamber to conclude that this evidence alone does not prove beyond reasonable doubt that Fofana designed the criminal conduct which took place in Koribondo, Bo District and Kenema District, or that his involvement in the planning process substantially contributed to the criminal conduct which occurred. Furthermore, despite the Trial Chamber’s finding that Fofana provided commanders with arms, ammunition and a vehicle which were used by the Kamajors during their attack on Kebi Town, the Appeals Chamber finds that it was open to the Trial Chamber to conclude that Fofana’s provision of logistics for attacks in Bo District did not substantially contribute to the commission of criminal acts in Bo District.[214]

98. Thus, the Appeals Chamber finds that the Trial Chamber did not err in finding Fofana not liable for planning the commission of crimes in Koribondo, Bo District and Kenema District. Therefore, the Appeals Chamber finds that in this respect, the Prosecution’s Third and Fourth Grounds of Appeal must fail.

(ii) The Prosecution’s Third and Fourth Grounds of Appeal: Aiding and Abetting

99. The Prosecution submits that Fofana is liable for aiding and abetting because it may be inferred from his seniority and attendance at meetings that he “must also have encouraged or lent moral support to the planners and executors of the crimes committed in the attacks on Koribondo, Bo District and Kenema District.”[215] The Prosecution further contends that no reasonable trier of fact could conclude that Fofana’s provision of logistics to launch military attacks on Kebi and Bo Towns did not have a substantial effect upon the perpetration of crimes.[216]

100. Fofana responds in regard to his presence at the January 1998 commanders’ meeting as he had done to the allegation of planning.[217]

101. In view of the Trial Chamber’s findings that Fofana’s speech at the January 1998 passing out parade did not amount to urging, encouraging or prompting the Kamajors to commit criminal acts, the Appeals Chamber holds that Fofana’s speech did not constitute aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District.[218]

102. Furthermore, although Fofana was present at the January 1998 commanders’ meeting the Trial Chamber did not make any factual findings as to the nature of Fofana’s participation during these meetings. The Appeals Chamber opines that Fofana’s mere presence at these meetings did not amount to aiding and abetting the criminal conduct which took place in Koribondo, Bo District and Kenema District. Furthermore, in regard to the Trial Chamber’s finding that Fofana provided commanders with arms, ammunition and a vehicle prior to their attack on Kebi Town, the Appeals Chamber holds that Fofana’s provision of logistics is not sufficient to establish beyond reasonable doubt that he contributed as an aider and abetter to the commission of specific criminal acts in Bo District.[219]

103. Thus, The Appeals Chamber concludes that the Trial Chamber was correct in finding Fofana not liable for aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District. Consequently, the Prosecution’s Third and Fourth Grounds of Appeal must fail.

104. The Prosecution submits that given the Trial Chamber’s findings and the evidence it accepted, the only conclusion open to any reasonable trier of fact is that Kondewa aided and abetted the crimes committed in the attacks on Koribondo, Bo District and Kenema District.

105. The Prosecution submits that considering Kondewa’s senior position within the CDF command structure, he together with Norman and Fofana was responsible for all of the planning and execution of the military operations.[220] It was further submitted that by attending the first and second January 1998 commanders’ meetings where the attacks on Koribondo and Bo District were discussed and unlawful instructions were given by Norman, considering Kondewa’s senior position within the CDF command structure,[221] Kondewa gave encouragement and moral support to the planners of the attacks and the crimes, thereby aiding and abetting in the planning of the crimes in Koribondo and Bo District.[222] The Prosecution submits that Kondewa, as High Priest, by initiating the Kamajors and giving them his blessing when they went into battle also gave encouragement and moral support to the Kamajors who committed crimes in Koribondo and Bo District.[223]

106. Further, the Prosecution argues that Kondewa similarly provided encouragement and support to the planners of the Kenema attack, as well as to the Kamajors who committed the attack, even though there were no express findings that Kondewa participated in meetings to plan the attack on Kenema.[224] In support of this argument, the Prosecution points to the fact that Kondewa held a position of seniority at Base Zero, and that the attacks on Koribondo, Bo, Bonthe and Kenema were all part of a single “all-out offensive.”[225]

107. The Prosecution submits that the only conclusion open to any reasonable trier of fact is that Kondewa provided encouragement and support to the planners of the Kenema attack, and to the Kamajors who committed crimes in the Kenema attack.[226]

108. Kondewa submits that in view of the evidence accepted by the Trial Chamber and relied upon by the Prosecution in its appeal, “no reasonable trier of fact could conclude beyond reasonable doubt that Kondewa aided and abetted in the planning.”[227] Kondewa argues that no reasonable trier of fact could conclude that his presence at the two January 1998 commanders’ meetings concerning the attacks on Koribondo and Bo District amounts to a substantial effect on the commission of the crimes.[228] Kondewa argues that his mere presence at the December 1997 and January 1998 commanders’ meetings, in the absence of evidence that he did anything other than fulfil his role as High Priest by blessing the Kamajors, does not meet the evidential standard required to demonstrate aiding and abetting. Kondewa submits that his senior position is irrelevant in the absence of any evidence demonstrating that he committed an act that had a substantial effect upon the commission of crimes.[229]

109. The Trial Chamber found that Kondewa’s speech at the Second Passing Out Parade did not amount to urging, encouraging or prompting the Kamajors to commit criminal acts.[230] In addition, there was an absence of a finding by the Trial Chamber concerning the nature of Kondewa’s participation in the January 1998 commanders’ meetings at which Norman gave orders for the commission of unlawful acts during the “all-out offensive.”[231] The fact that Kondewa held a position of responsibility as High Priest and that he spoke at the Second Passing Out Parade and attended Commanders’ meetings is not sufficient to conclude that this evidence alone does prove beyond reasonable doubt that Kondewa encouraged or supported the criminal conduct which took place in Koribondo, Bo District and Kenema District.

110. The Appeals Chamber agrees with the findings of the Trial Chamber that giving “words of moral support and encouragement to the Kamajor fighters who were about to conduct military operations on the junta-held territories”[232] or blessings, as well as providing medicine which the Kamajors believed would protect them against the bullets does not constitute aiding and abetting in the planning, preparation or execution of the criminal acts in Bo District.[233]

111. The Appeals Chamber finds that the Trial Chamber was correct in finding Kondewa not liable for aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District. Consequently, the Prosecution’s Third and Fourth Grounds of Appeal fail in this respect.

112. In relation to the attacks on Tongo, the Appeals Chamber, Justice King dissenting, upholds the Trial Chamber’s convictions of Kondewa and Fofana, pursuant to Article 6(1), of aiding and abetting violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment punishable under Article 3.a. of the Statute (Counts 2 and 4 respectively).

113. In relation to the attacks on Koribondo, Bo District and Kenema District, the Appeals Chamber upholds the Trial Chamber’s acquittals of Kondewa and Fofana, pursuant to Article 6(1), of violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as pillage, a violation of Article 3.a. common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute (Count 5).

114. The Appeals Chamber dismisses the Prosecution’s Third and Fourth Grounds of Appeal and dismisses, Justice King dissenting, Kondewa’s Fourth Ground of Appeal.

B. Prosecution’s Fifth Ground of Appeal and Kondewa’s Fifth Ground of Appeal: Enlisting Children Under the Age of 15 Years into an Armed Force or Group and/or Using Them to Participate Actively in Hostilities

115. Kondewa, in his Fifth Ground of Appeal, contends that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law and fact in finding him criminally responsible for “enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities,” an other serious violation of international humanitarian law punishable under Articles 4.c. and 6(1) of the Statute.[234]

116. On the other hand, the Prosecution, in its Fifth Ground of Appeal, submits that the Trial Chamber erred in failing to describe clearly the full extent of Kondewa’s responsibility,[235] because its finding related to Kondewa’s liability for enlistment only in respect of one child, namely Witness TF2-021.[236] The Prosecution submits that Kondewa should be held responsible for committing, or alternatively aiding and abetting recruitment, by the enlistment and/or use, of children other than Witness TF2-021.[237] With regard to Fofana the Prosecution submits that the Trial Chamber erred in acquitting him and avers that he should be held liable under Article 6(1) for aiding and abetting child recruitment.[238]

117. Although the Grounds of Appeal raised by Kondewa and the Prosecution advance different arguments, they raise similar issues regarding the criminal responsibility of Fofana and Kondewa under Article 6(1) for child enlistment or the use of children to participate actively in hostilities. Therefore, the Appeals Chamber will consider these Grounds together in this part of the Judgment.

118. Concerning Fofana’s criminal responsibility under Article 6(1), the Trial Chamber found that the evidence adduced by the Prosecution did not establish beyond reasonable doubt that Fofana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of child enlistment or use of children to participate actively in hostilities.[239] The Trial Chamber’s reasoning was two fold. First, Fofana’s mere presence at commanders’ meetings does not demonstrate that he encouraged anyone to make use of child soldiers or that he aided and abetted in the planning, preparation or execution of the crime.[240] Second, Fofana’s presence at Base Zero, where child soldiers were present, is not sufficient by itself to establish that Fofana had any involvement in the commission of the crime.[241] The Trial Chamber further held that evidence that the CDF as an organisation was involved in the recruitment of children and the use of them to participate actively in hostilities did not demonstrate that Fofana was personally involved in such crimes.[242]

119. In finding Kondewa responsible under Article 6(1) of the Statute, the Trial Chamber relied on the evidence of Witness TF2-021 who testified that he and approximately 20 other young boys were initiated into the CDF, that they were given military training and that soon afterwards, initiates were sent into battle.[243] The Trial Chamber found that the evidence is “absolutely clear” that on this occasion the initiates had taken the first step in becoming fighters.[244] Consequently, the Trial Chamber found that when Kondewa was initiating the boys, he was also “performing an act analogous to enlisting them for active military service.”[245] The Trial Chamber also found that Witness TF2-021 was eleven years old when Kondewa enlisted him and that Kondewa knew or had reasons to know that the boy was under fifteen years of age.[246] The Trial Chamber further held that “[a]lthough the Chamber found this evidence entirely sufficient to establish enlistment beyond a reasonable doubt, [Witness] TF2-021 was given a second initiation, into the Avondo Society, headed by Kondewa himself, when he was thirteen years old.”[247]

120. The Trial Chamber decided not to consider evidence relating to Kondewa’s criminal liability for use of child soldiers because the Indictment charged use of child soldiers as an alternative to enlistment.[248]

(a) The Prosecution’s Fifth Ground of Appeal: Whether the Trial Chamber’s Findings Reflect the Full Extent of Kondewa’s Liability

121. In support of its submission, in respect to its Fifth Ground of Appeal, the Prosecution refers to the evidence of Witness TF2-021 that he was initiated into the CDF along with approximately 20 other young boys who were of the same age group as him.[249] The Prosecution submits that based on the evidence of Witness TF2-021 the only reasonable inference which a reasonable trier of fact could make was that “at least some, if not all, of these other 20 boys . . . were under the age of 15.”[250] The Prosecution supports its argument that no reasonable trier of fact could have concluded that Kondewa enlisted only one child by pointing to evidence that other children under 15 years were present at Base Zero and that they performed several roles there.[251]

122. First, the Prosecution argues that the evidence clearly showed that the provision of initiation by Kondewa to under-aged children present at Base Zero was directly assisting the commission of the crime. Kondewa specifically assisted, encouraged and supported the initiation of children, with the knowledge that his conduct would assist the enlistment and/or use of children.[252] The Prosecution refers to the opinion of its Expert Witness TF2-EW2 that initiation was a stepping stone to recruitment as a soldier and the evidence of Witness TF2-014 that Kamajors went to war at an early age provided that they had been initiated.[253] Second, the Prosecution argues that Kondewa encouraged the commission of enlistment by his speeches at the passing out parades in December 1997 and January 1998.[254] The Prosecution submits that Kondewa’s encouragement is evident from the Trial Chamber’s finding that no Kamajor would go to war without Kondewa’s blessing.[255] According to the Prosecution, Kondewa’s awareness that his conduct aided and abetted the commission of enlistment may be inferred from the Trial Chamber’s various findings, including Kondewa’s presence at commanders’ meetings at which Norman praised junior Kamajors.[256]

123. Kondewa responds that the evidence on which he was found to be individually criminally responsible for the enlistment of one child was so flawed that it is impossible from that evidence to reach the further conclusion that he enlisted or aided and abetted the enlistment of more than one child.[257] Kondewa submits that it is unclear how the evidence of Witnesses TF2-EW2 and TF2-014 demonstrates that initiations were a substantial contribution to the crime of enlistment.[258] Kondewa further submits that the Prosecution’s argument concerning his liability for aiding and abetting child enlistment “fails primarily on the ambiguity of the testimony of Witness TF2-021 and the Trial Chamber’s own confusion as to its interpretation.”[259]

124. The Prosecution submits that although the Trial Chamber found Kondewa responsible for enlisting Witness TF2-021, it was in error in not finding him responsible for enlisting and/or using other children.

125. The Appeals Chamber is of the view that the crime of enlisting children under the age of 15 years into armed forces or groups and of using them to participate actively in hostilities may be committed irrespective of the number of children enlisted by the accused person.

a. Whether Kondewa Committed or Aided and Abetted the Recruitment by Enlisting More Than one Child

126. The Appeals Chamber will now determine whether the Trial Chamber erred in failing to find Kondewa responsible for committing and/or aiding and abetting the enlistment of children other than Witness TF2-021.

127. The Trial Chamber accepted and considered evidence of several witnesses including three former child soldiers in determining Kondewa’s responsibility for child enlistment;[260] but relied solely on the evidence of Witness TF2-021 in arriving at its conclusion. The Trial Chamber found that the evidence of Witness TF2-021 was “pivotal in making its factual findings,”[261] and noted that “the events in question occurred when he was very young and [that] his testimony comes many years after the events in question.”[262] Nevertheless, the Trial Chamber found the testimony of Witness TF2-021 “highly credible and largely reliable.”[263]

128. The Appeals Chamber notes the Trial Chamber’s finding that at the age of 11 years,[264] Witness TF2-021 was initiated by Kondewa, his “sowe” or initiator, into the Kamajor society at Base Zero.[265] According to the Witness there were approximately 400 initiates, 20 of whom the Witness estimated to be almost the same age group as him.[266] The Trial Chamber found that these other young boys were also initiated by Kondewa.[267] As part of the initiation ceremony, the boys “were told that they would be made powerful for fighting and were given a potion to rub on their bodies as protection . . . before going [into] war.”[268]

129. In the absence of evidence concerning the ages of the other boys, the Appeals Chamber finds that no reasonable trier of fact could have found that the testimony of Witness TF2-021 sufficiently establishes the age of the 20 young boys who were initiated with him.

130. The Trial Chamber accepted the evidence provided by two other former child soldiers who underwent initiation.[269] The Trial Chamber found that Witness TF2-140 was initiated into the Kamajor society at the age of 14 years along with adults as well as other children who were 10 or 11 years old.[270] Initiation fees were paid to the district initiator who then sent the fees to Kondewa, the High Priest of the Kamajors.[271] The Trial Chamber also found that Witness TF2-004 was initiated at Liya by Muniro Sherif along with many others, including children as young as 10 years old.[272]

131. The Trial Chamber reached its conclusion about Kondewa’s responsibility for the enlistment of children by relying solely on the evidence of Witness TF2-021.[273] The Trial Chamber did not find that Kondewa was involved in the initiation process of Witnesses TF2-140 and TF2-004.

132. In view of the lack of evidence of the ages of the boys who were initiated along with Witness TF2-021, as well as the absence of evidence indicating that Kondewa was involved in the initiations of Witness TF2-140 and Witness TF2-004, the Appeals Chamber finds, Justice Winter dissenting, that the Trial Chamber was correct in not finding Kondewa liable for committing or aiding and abetting the crime of enlistment of children other than Witness TF2-021. The Prosecution’s Fifth Ground of Appeal therefore fails in this respect.

133. Although the Prosecution has charged Kondewa in Count 8 with the use of children below the age of 15 years in hostilities, as an alternative to the charge of enlisting them as child soldiers, the Trial Chamber held that having found him individually criminally responsible for enlisting children as child soldiers, it did not need to consider the evidence in relation to the alternative charge. The Appeals Chamber holds, in the circumstances, that it cannot consider any evidence or pronounce a verdict on the alternative charge.[274] Even if the Appeals Chamber were to consider the evidence, it would still have come to the conclusion as it earlier did[275] that there was absence of evidence concerning the ages of the alleged children.

134. The Appeals Chamber opines that the Trial Chamber should have considered any evidence on the alternative charged and made findings upon such evidence even though, at the end, a verdict would be pronounced on only one of the alternative charges.

135. The Prosecution’s Fifth Ground of Appeal therefore fails in this respect.

(b) Kondewa’s Fifth Ground of Appeal: Committing the Crime of Enlistment of Children

136. In his Fifth Ground of Appeal, Kondewa contends that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law and in fact in finding him criminally responsible under Article 6(1) for committing the crime of enlisting a child under the age of 15 years into an armed force or group.[276] Specifically, Kondewa submits that the Trial Chamber’s evaluation of the evidence was wholly erroneous, and, he advances three main arguments in support of this contention. First, Kondewa argues that the Trial Chamber’s conclusion that initiation is analogous to enlistment for active military service amounts to an error because it conflates initiation and enlistment.[277] Second, Kondewa submits that the Trial Chamber erred in its findings regarding the second initiation of Witness TF2-021 into the Avondo Society, in that it suggested that enlistment is a crime that may recur numerous times in relation to the same child within the same fighting group.[278] Third, Kondewa submits that the Trial Chamber based its findings on ‘unclear’ witness testimony and contradictory conclusions on the meaning of this testimony.[279]

137. The Prosecution concedes that initiation is not necessarily military recruitment and that it was originally meant to serve other purposes. However, the Prosecution argues that the Trial Chamber was correct to consider evidence of initiation in determining whether the crime of child enlistment was committed because initiation was the means by which children were accepted as fighters into the CDF.[280]

138. The Prosecution’s response to Kondewa’s second argument is three fold: first, that the Trial Chamber did not expressly find that Witness TF2-021’s second initiation into the Avondo Society was an actual act of enlistment,[281] second, that even if it was the case that the Trial Chamber erred in law by finding that Witness TF2-021 was initiated a second time, Kondewa has failed to demonstrate how this error invalidates the Trial Chamber’s decision,[282] and third, that on the basis of the foregoing submissions, the Appeals Chamber need not consider whether enlistment is a recurring crime, that is, whether a person who has already been enlisted into an armed group and is a member of the group may be enlisted again.[283] The Prosecution, however, submits that it does not concede that any subsequent acts of enlistment would not amount to a crime under international law.[284] Regarding Kondewa’s third argument, the Prosecution submits that the evidence relied on by the Trial Chamber was not unreliable or contradictory. The Prosecution asserts that any reasonable trier of fact would have reached the same conclusion as the Trial Chamber based on the evidence adduced.[285]

139. The Appeals Chamber affirms that the crime of recruitment by way of conscripting or enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities constitutes a crime under customary international law entailing individual criminal responsibility.[286] Pursuant to Article 4.c. of the Statute, the crime of conscripting or enlisting children or using them to participate actively in hostilities, constitutes an other serious violation of international humanitarian law.[287] The actus reus requires that the accused recruited children by way of conscripting or enlisting them or that the accused used children to participate actively in hostilities.[288] These modes of recruiting children are distinct from each other and liability for one form does not necessarily preclude liability for the other.

140. According to the Trial Chamber in the AFRC Trial Judgment, enlistment means “accepting and enrolling individuals when they volunteer to join an armed force or group.”[289] The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group. However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.[290]

141. It is apparent to the Appeals Chamber that there is a paucity of jurisprudence on the question of how direct an act must be to constitute “enlistment” under Article 4.c., as well as the possible modes of enlistment. The Appeals Chamber holds that for enlistment there must be a nexus between the act of the accused and the child joining the armed force or group. There must also be knowledge on the part of the accused that the child is under the age of 15 years and that he or she may be trained for combat.[291] Whether such a nexus exists is a question of fact which must be determined on a case-by-case basis.

142. On the particular facts of this case, it is clear that the enlistment of Witness TF2-021 had taken place before he was initiated by Kondewa. The evidence shows that the Witness had first been captured by the rebels in 1995 and was later captured by the CDF in 1997.[292] Upon his capture by the CDF, Witness TF2-021 was forced to carry looted property by the CDF.[293] This act, in the opinion of the Appeals Chamber constituted enlistment. For this conclusion, the Appeals Chamber draws support from paragraph 4557 of the ICRC Commentary to Article 4(3)(c) of Additional Protocol II referred to by the Trial Chamber itself.[294]

“The principle of non-recruitment also prohibits accepting voluntary enlistment. Not only can a child not be recruited, or enlist himself, but furthermore he will not be ‘allowed to take part in hostilities’, i.e. to participate in military operations such as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage.”[295]

144. In the context of this case, in which the armed group is not a conventional military organisation, “enlistment” cannot narrowly be defined as a formal process. The Appeals Chamber regards “enlistment” in the broad sense as including any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military operations.

145. In these circumstances, the Appeals Chamber, Justice Winter dissenting, holds the view that Witness TF2-021 had already been enlisted before Kondewa initiated him into the Kamajors.

146. For the above reasons, the Appeals Chamber, Justice Winter dissenting, grants Kondewa’s Fifth Ground of Appeal and reverses the verdict of guilt and substitutes a verdict of not guilty on Count 8.

(a) Prosecution’s Fifth Ground of Appeal: Fofana’s Liability for Aiding and Abetting Enlistment and Use

147. In its Fifth Ground of Appeal, the Prosecution contends that the majority of the Trial Chamber erred in acquitting Fofana of child enlistment and/or the use of children to participate actively in hostilities.[296] The Prosecution argues that Fofana is criminally responsible under Article 6(1) for aiding and abetting child enlistment and/or use of children to participate actively in hostilities.[297]

148. According to the Prosecution, Fofana provided practical assistance to the CDF/Kamajors which had a substantial effect on the military enlistment or active use of children under the age of 15 years in hostilities.[298] In support of its contention, the Prosecution relies on the Trial Chamber’s findings that Fofana played a central role in the organisational life, operations, decision-making and the activities of the CDF which engaged in massive enlistment of children and also used them in active hostilities.[299] In addition, Fofana provided logistical support in the form of weapons and ammunitions for major attacks in which children were used.[300] The Prosecution submits that the only reasonable inference to draw from the foregoing evidence and findings of the Trial Chamber is that the logistical support provided by Fofana also supplied the children involved in combat activities and that Fofana thereby assisted in the commission of the crime.[301]

149. Furthermore, the Prosecution submits that Fofana encouraged the military enlistment of children and/or their active use in hostilities “in ways that had substantial effect on the commission of those crimes.”[302] The Prosecution submits that Fofana’s presence and speech at a passing out parade during which Norman praised junior Kamajor fighters, coupled with his position as a superior in the CDF, constitutes encouragement for the purpose of aiding and abetting.[303]

150. Regarding Fofana’s mens rea, the Prosecution relies on the following evidence in arguing that the only reasonable conclusion which could be reached was that Fofana knew or ought to have known that he assisted and encouraged child enlistment and/or use:[304] first, Fofana’s presence at commanders’ meeting during which Norman praised junior Kamajor fighters;[305] second, Fofana’s presence at Base Zero where child soldiers were also seen;[306] third, the testimony of Witness TF2-140 that he acted as part of the security team for Fofana’s household;[307] fourth, Fofana’s close association with Kondewa whom the Trial Chamber found to have enlisted a child;[308] and finally, Fofana’s role of authority in the CDF.[309]

151. Fofana responds that the Prosecution failed to demonstrate how the Trial Chamber’s decision to acquit him amounts to an error.[310] Fofana acknowledges that the CDF as an organisation enlisted child soldiers, but submits that this is insufficient proof that he was personally involved in the crime of enlistment. Fofana submits that his mere presence at events and his position of authority in the CDF do not amount to encouragement or assistance for the purpose of aiding and abetting.[311] Furthermore, Fofana submits that the Prosecution failed to establish that he possesses the requisite mens rea for aiding and abetting child enlistment.[312]

152. The Appeals Chamber notes that the Trial Chamber accepted and considered the foregoing evidence in determining Fofana’s criminal responsibility, but found that it did not establish beyond reasonable doubt that Fofana is responsible for child enlistment or use pursuant to any of the modes of liability under Article 6(1), including aiding and abetting.[313] The Prosecution merely proffers arguments based on evidence which the Trial Chamber considered and rejected, but does not point to any error in the reasoning of the Trial Chamber. The Appeals Chamber emphasises that on appeal, a party cannot merely repeat arguments which did not succeed at trial in the hope that the Appeals Chamber will consider them afresh, unless that party can demonstrate that rejecting them constituted an error which warrants the intervention of the Appeals Chamber.[314]

153. The Appeals Chamber finds, Justice Winter dissenting, that the Prosecution has failed to demonstrate that no reasonable trier of fact could have found that Fofana was not responsible for aiding and abetting child enlistment and their use to participate actively in hostilities.

154. For the reasons stated, the Appeals Chamber, Justice Winter dissenting, dismisses the Prosecution’s Fifth Ground of Appeal in its entirety, grants Kondewa’s Fifth Ground of Appeal, reverses the verdict of guilt on Count 8 and substitutes the verdict of not guilty.

A. Kondewa’s First Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Bonthe District.

155. The Trial Chamber found that the Kamajors committed the following crimes during the attack on Bonthe on 15 February 1998:

(i) violence to life, health and physical or mental well-being of persons a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely: murder and cruel treatment, punishable under Article 3.a. of the Statute, charged in Counts 2 and 4, respectively;

(ii) violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely:

(b) collective punishments, punishable under Article 3.b. of the Statute, charged in Counts 5 and 7 respectively.[315]

The Trial Chamber found Kondewa responsible for these crimes as a superior pursuant to Article 6(3) of the Statute.[316] However, he was not found responsible pursuant to Article 6(1).[317]

156. Kondewa alleges an error in law and in fact by the majority of the Trial Chamber, Justice Thompson dissenting, in finding that the Prosecution had proven beyond reasonable doubt that he was individually criminally responsible as a superior, pursuant to Article 6(3), for crimes committed during the attack on Bonthe District on 15 February 1998.[318] The issue raised by Kondewa in his First Ground of Appeal specifically concerns the application of the “effective control” test in determining whether a superior-subordinate relationship existed between him and the alleged perpetrators of the criminal acts.[319]

157. The Trial Chamber found that there was a superior-subordinate relationship between Kondewa and three Kamajor commanders in Bonthe, namely, Morie Jusu Kamara (District Battalion Commander and overall commander for the Bonthe attack), Julius Squire (Kamara’s second in command) and Kamajor Baigeh (Battalion commander of the Kassilla battalion).[320] The Trial Chamber stated that Kondewa exercised effective control over these Kamajors and the Kamajors under their immediate command, and had the legal and material ability to issue orders to Kamara both by virtue of his de jure status as High Priest and his de facto status as a superior in Bonthe District.[321] Kondewa exercised effective control over Kamajors in Bonthe District as early as August 1997, even before Base Zero was established.[322]

158. The Trial Chamber found that Kamara was the overall commander for the Bonthe attack and that he in turn exercised effective control over Squire, Baigeh, Rambo Conteh, Lamina Gbokambama as well as the other Kamajors under their immediate command. Furthermore, Kamara and Squire refused to recognise the authority of the Attorney General and to accept any instructions that did not come from Norman or Kondewa.[323] The Trial Chamber also found that the evidence adduced did not establish beyond reasonable doubt that Kondewa exercised the same degree of control over other Kamajor commanders and fighters who operated in the surrounding areas of Bonthe Town prior to the attack or subsequently.[324]

159. Having found that murder, cruel treatment and pillage, as charged in Counts 2, 4, and 5, respectively, were committed in Bonthe, the Trial Chamber found that “all of the perpetrators were Kamajors under the effective control of Kondewa.”[325] The Trial Chamber also found that the acts described in Counts 2, 4 and 5 were perpetrated with the specific intent to punish the civilian population in Bonthe District,[326] and that Kondewa was responsible as a superior for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute in Bonthe District under Count 7.[327]

160. On this basis the Trial Chamber found that Kondewa was individually criminally responsible as a superior under Article 6(3) of the Statute for all the crimes charged in Counts 2, 4, 5 and 7 in regard to Bonthe District.

161. Kondewa does not challenge the Trial Chamber’s articulation of the legal requirements of individual criminal responsibility under Article 6(3), including the statement that the effective control test is applicable for a determination of whether a superior-subordinate relationship exists.[328] He submits, however, that the Trial Chamber failed to apply correctly the test of effective control necessary to establish the existence of a superior-subordinate relationship between him and Kamajor commanders Kamara, Squire and Baigeh in Bonthe District.[329] He argues, in particular, that the evidence did not establish any form of a relationship between him and these Kamajor commanders; that he had authority and control over them; that he issued orders to them; that he had the ability to prevent them from committing criminal acts or to punish them; or that his de jure status as High Priest or de facto status as a superior gave him effective control over them.[330]

162. Kondewa submits that in finding a superior-subordinate relationship, the Trial Chamber has significantly and unacceptably lowered the bench-mark that has been well-established in international case law. He submits that the jurisprudence of the ad hoc tribunals indicates that a finding of effective control requires a high level and rigorous analysis of evidence to show that an accused had effective control over subordinates and actual possession of powers of control over the actions of the subordinates.[331] He also argues that mere possession of de jure powers or substantial influence is insufficient and that superior responsibility is more difficult to establish for civilian superiors usually due to the lack of formal powers of control in their case.[332] Finally, he submits that in almost every case in which an accused person has been convicted on the basis of command or superior responsibility, the accused’s position fell within “a hierarchy or chain of command.”[333]

163. Furthermore, he submits that the Trial Chamber “unjustifiably disregarded the evidence of Albert Nallo who testified that [he] did not at any time during the war ‘command any troops’” even though in the Trial Chamber’s view Nallo “was . . . the single most important witness in the Prosecution evidence on the alleged superior responsibility of the Accused. . . ”[334]

164. Kondewa also submits that evidence relied on by the Trial Chamber consisted of events occurring outside the timeframe of the Indictment.[335] In short, Kondewa submits that effective control must be established at the time when the alleged crimes in question were committed and that this requirement was not met in the present case. He accordingly requests that the Appeals Chamber expunge this evidence which was irrelevant and highly prejudicial.

165. Kondewa submits that because the Trial Chamber found that his de jure status as High Priest did not give him effective control in locations other than Bonthe, it was “unclear how the Trial Chamber determined that [this] status as High Priest gave him any higher degree of authority in Bonthe.”[336] He, therefore, requests the Appeals Chamber to reverse the Trial Chamber’s finding that he was individually criminally responsible as a superior under Counts 2, 4, 5 and 7 for crimes committed during the attack on Bonthe Town.

166. The Prosecution also concurs with the Trial Chamber’s articulation of the legal requirements for a finding of superior responsibility under Article 6(3), and that the test for the establishment of a superior-subordinate relationship is that of effective control.[337] The Prosecution submits, however, that contrary to Kondewa’s submission, the Trial Chamber did not adopt a lower evidentiary standard in applying the test of effective control. In particular, the Prosecution argues that there are no fixed categories or types of evidence that may be relied upon by a Trial Chamber to establish the existence of a superior-subordinate relationship.[338] The Prosecution submits that “the indicators of effective control are more a matter of evidence than of substantive law, and whether the evidence regarding a civilian’s de jure or de facto authority establishes effective control over subordinates must be determined on a case-by-case basis . . . ”[339]

167. Furthermore, the superior need not be a commander of the subordinate[340] and there need not be a hierarchy, subordination and chains of command, nor proof of direct or formal subordination. Nor is it necessary to establish that the accused gave direct instructions or actual and repeated orders to alleged subordinates, or that the accused actually punished them.[341] What needs to be established is that the superior had the “material ability to prevent or punish criminal conduct,” however that control is exercised.[342] Furthermore, case law does not draw any distinction between the legal standard required for proof of a superior-subordinate relationship in the case of “civilian” as opposed to “military” superiors.[343]

168. In response to Kondewa’s argument that the Trial Chamber considered evidence of acts occurring outside the timeframe of the Indictment, the Prosecution submits that such evidence “may, nonetheless, be taken into account where relevant to and probative of the individual responsibility of the accused for conduct that did occur within the timeframe of the [I]ndictment,”[344] and that consequently it was open to a reasonable trier of fact to conclude that Kondewa exercised effective control in August 1997 and that this effective control continued to, at least, March 1998.[345]

169. The Prosecution also submits that in any event, the Trial Chamber did not base its findings regarding the existence of a superior-subordinate relationship on Kondewa’s de jure status as High Priest alone, but on the totality of the evidence in the case.[346] The Prosecution therefore submits that based on the findings of fact relied upon by the Trial Chamber, a reasonable trier of fact could find that Kondewa had effective control over his alleged subordinates in Bonthe District.

170. In reply, Kondewa also relies on his submissions under his First Ground.[347]

171. Kondewa alleges that the Trial Chamber erred in both law and fact in finding that he was responsible as a superior pursuant to Article 6(3) for the crimes committed in Bonthe District. It is evident, however, from the submissions that he does not challenge the Trial Chamber’s articulation of the legal requirements for the establishment of superior responsibility under Article 6(3) of the Statute. Kondewa, therefore, does not allege an error of law, but is instead concerned with the way in which the Trial Chamber applied the law to the particular facts of his case. The Appeals Chamber is of the view that this submission, in essence, questions the inferences drawn from facts found by the Trial Chamber and is therefore factual in nature. Kondewa must therefore satisfy the standard of review for alleged errors of fact.

172. Kondewa’s arguments concern the Trial Chamber’s application of the effective control test in determining a superior-subordinate relationship between him and the perpetrators of certain criminal acts during the attack on Bonthe. Even though Kondewa disputes the totality of the Trial Chamber’s findings regarding his role as a superior, he does not proffer any argument in support of other aspects of his ground of appeal.[348] Kondewa’s arguments are specifically limited to the finding of the existence of a superior-subordinate relationship. Although Kondewa challenges the finding that he had both the legal and material ability to prevent the commission of criminal acts by his subordinate Morie Jusu Kamara and other subordinates and to punish them for those crimes, the Trial Chamber’s finding that he knew or had reason to know that certain crimes were being committed or that he failed to prevent their commission or to punish the alleged perpetrators was not challenged as such.[349]

173. In order for the Appeals Chamber to assess a party’s arguments on appeal, the party must set out its grounds of appeal clearly, logically and exhaustively and must support allegations of error with precise references to the trial judgment or other material that supports his appeal. The Appeals Chamber will not consider submissions which are obscure, contradictory, vague or suffer from formal or other deficiencies.[350] The Appeals Chamber will, therefore, only consider the Trial Chamber’s application of the effective control test, and determine whether based on the findings of fact, a reasonable trier of fact could have concluded that a superior subordinate relationship existed between Kondewa and these Kamajors.

174. Both parties concur with the Trial Chamber’s articulation of the legal requirements for the establishment of superior responsibility under Article 6(3). They differ, however, in the application of the effective control test to civilian as opposed to military superiors. Both parties agree that a superior-subordinate relationship may be of a military or civilian character and that individuals in positions of authority whether within civilian or military structures may incur criminal responsibility on the basis of their de facto and/or de jure positions as superiors.[351] Kondewa argues that for a civilian superior to be found to have effective control pursuant to Article 6(3), the superior must either exercise powers of control similar to or analogous to that of a military commander, or must be part of a formalized structure of command.[352] According to Kondewa, liability under Article 6(3) is more difficult to establish for civilian superiors because there is usually an absence of formal powers of control in such a case.[353]

175. As has been noted, the position taken by the Prosecution is that there is no distinction between the legal standards required for proof of a superior-subordinate relationship in the case of “civilian” as opposed to “military” superior. The Appeals Chamber holds that the test for establishing the existence of a superior-subordinate relationship is effective control for both military and civilian superiors.[354]

176. The Appeals Chamber will now determine whether it was reasonable for the Trial Chamber to conclude that Kondewa exercised the requisite degree of “effective control” over his alleged subordinates.

177. The Trial Chamber relied on the following facts to conclude that as of 15 February 1998, Kondewa exercised effective control over Kamara, Squire and Baigeh: (a) the de jure status of Kondewa as a High Priest; (b) an incident which occurred in August 1997, (c) events which occurred during the 15 February 1998 attack on Bonthe, and (d) a letter sent from the Attorney-General to Kamajors in Bonthe in March 1998.[355] These facts are discussed in detail below.

178. In finding that a superior-subordinate relationship existed between Kondewa and the Kamajor commanders responsible for the Bonthe attack, the Trial Chamber relied on what it describes as his de jure status as High Priest of Kamajors in Sierra Leone and particularly so in Bonthe District.[356] Kondewa submits that because the Trial Chamber found elsewhere in the Judgment that the command he had over the Kamajors by virtue of his position as High Priest did not amount to a relationship of effective control, it was “unclear how the Trial Chamber determined that [his] status as High Priest gave him any higher degree of authority in Bonthe.”[357] The Appeals Chamber notes that the Trial Chamber indeed found that Kondewa’s status as High Priest did not amount to effective control over the Kamajors.[358]

179. The Appeals Chamber notes, however, that the Trial Chamber did not base its findings on the existence of a superior-subordinate relationship for Bonthe District on Kondewa’s de jure position as High Priest alone. In addition to Kondewa’s de jure status, the Trial Chamber relied on his de facto status as a superior to his alleged subordinates, as disclosed by evidence of his actual exercise of effective control over Kamajors who committed crimes in Bonthe District.[359] Although his position as High Priest was one of several factors considered by the Trial Chamber in determining the existence of a superior-subordinate relationship, the Appeals Chamber is of the view that this is not a material factor in view of the overwhelming evidence of his actual exercise of effective control. Such include evidence of the relationship with his alleged subordinates in Bonthe, including an incident occurring in August 1997, events occurring during the 15 February 1998 attack on Bonthe, and a reaction to a letter sent from the Attorney-General to Kamajors in Bonthe in March 1998.

180. The Trial Chamber also relied on an incident occurring in Bonthe in August 1997, prior to the setting up of Base Zero, which involved a delegation sent to Kondewa as “the supreme head of the Kamajors.”[360] Kondewa submits that the evidence falls outside the time frame of the Indictment, and that such evidence may not be relied upon to find that he exercised effective control six months later.[361]

181. The Appeals Chamber concurs that effective control must be established at the time of commission of the alleged crimes.[362] The Appeals Chamber is of the view, however, that even though an accused cannot be convicted for criminal acts falling outside the period of the Indictment, evidence of matters occurring outside the timeframe of the Indictment may be taken into account where relevant and probative of the accused’s responsibility as a superior.[363] The evidence was relied upon by the Trial Chamber to establish that at a time before the commission of the crimes, Kondewa had effective control and that he had authority and power to issue oral and written directives to the Kamajors in the area. He had the power to order investigations for misconduct, and to hold court hearings and to threaten the imposition of sanctions of “a terrible death” on the Kamajors if they lied to him.[364] The evidence also establishes Kondewa’s pre-existing relationship with Squire.[365]

182. Taken together with the events of February and March 1998, the evidence shows that a reasonable trier of fact could conclude that this effective control continued until at least 15 February 1998.

183. The Trial Chamber also relied on events that occurred during the 15 February 1998 attack itself.[366] Kamara, as the overall commander of the Bonthe attack,[367] sent several reports to Kondewa at Base Zero about the situation in Bonthe.[368] Based on these reports, three delegations came to Bonthe from Base Zero to investigate the situation. The first two delegations acted under Kondewa’s instructions and Kondewa himself was the leader of the third delegation that arrived in Bonthe on 1 March 1998.[369] Witness Father Garrick testified that Kondewa came to Bonthe on the request of Kamara who had been complaining about the attitude of the Kamajors towards the civilians, and especially regarding the plight of the chiefdom speaker, Lahai Ndokoi Koroma, who was being targeted by the Kamajors for allegedly being a “junta.”[370] Only Kondewa had authority to release Lahai Koroma and Kondewa left with him to Talia and later to Bo.

184. This evidence shows that Kamara reported to Kondewa about events in Bonthe not in the latter’s capacity as High Priest, but in his capacity as de facto commander of the Kamajors who carried out the attack. Furthermore, Kondewa said at a public meeting in Bonthe that he had not allowed his men to enter Bonthe but that they had not listened to his advice and had done what they had done. He apologised on their behalf and told the gathering that the Kamajors and not ECOMOG were responsible for security in the area.[371]

185. In March 1998, a delegation came to Freetown from Bonthe to complain to the President and the Attorney-General about the looting and killing carried out by the Kamajors in Bonthe. A letter written by the Attorney-General was given to Kamara, who passed it on to Squire. The latter declared that he refused to recognise the authority of the Attorney-General, or to accept any instructions unless they came from Norman or Kondewa.[372]

186. The Trial Chamber’s findings on the existence of a superior-subordinate relationship in each location was based on the totality of the evidence in the case with regard to such location. In the case of Bonthe, Kondewa’s position as High Priest, which gave him a certain status, was just one of several factors considered by the Trial Chamber. The Trial Chamber also found that Kondewa had authority and power to issue oral and written directives; that he could order investigations for misconduct and hold court hearings; and that he had the legal and material ability to issue orders to Kamara.[373] Furthermore, Kondewa himself acknowledged his authority and control over Bonthe by stating publicly that he refused “to give any areas under his control to a military government but to the democratically elected Government of President Ahmad Tejan Kabbah.”[374]

187. The Appeals Chamber finds that it was open to a reasonable trier of fact, based on all the evidence adduced, to conclude that Kondewa’s de facto status as superior resulted in the exercise of effective control over the Kamajors who committed crimes in Bonthe. The fact that the Trial Chamber found that Kondewa did not exercise the same degree of control over Kamajors in other locations does not render the Trial Chamber’s findings in relation to Bonthe inconsistent or illogical.

188. The Appeals Chamber therefore finds that Kondewa has failed to show that no reasonable trier of fact could have reached the conclusion that a superior-subordinate relationship existed between him and his alleged subordinates in Bonthe District.

189. For the foregoing reasons, the Appeals Chamber, Justice King dissenting, dismisses Kondewa’s First Ground of Appeal.

B. Kondewa’s Second Ground of Appeal: Alleged error in finding Kondewa responsible for committing murder at Talia/Base Zero

190. Kondewa submits that the Trial Chamber erred in finding him guilty for committing the crime of murder as charged in Count 2, which is prohibited by common Article 3(1)(a) of the Geneva Conventions and punishable under Articles 3.a. and 6(1) of the Statute.[375] He asks the Appeals Chamber to overturn this conviction under Count 2.

“Sometime towards the end of 1997, two ‘Town Commanders’ were brought to Talia. Kondewa took a gun from Kamoh Bonnie, Kondewa’s priest, shot and killed one of the town commanders. The next morning [the] witness saw two graves where the bodies of the two town commanders were buried.”[376]

192. The Trial Chamber found that this incident constitutes an “intentional killing perpetrated by Kondewa” and further found that these men were killed because they were considered to be “collaborators” and finally it was held that “it has been proven beyond a reasonable doubt that Kondewa is individually criminally responsible pursuant to Article 6(1) for committing murder as a war crime as charged under Count 2 of the Indictment.”[377]

193. Kondewa’s principal submission is that the Prosecution did not prove beyond reasonable doubt that he is guilty of committing the murder of two town commanders in Talia/Base Zero. Specifically, he argues that (i) the incident involving the town commanders occurred outside the timeframe of the Indictment; (ii) the identification of Kondewa as the perpetrator was not established; (iii) the Trial Chamber erred in relying solely on hearsay evidence and on circumstantial evidence in finding Kondewa responsible for murder.[378]

194. The Prosecution asserts that the whole of the evidence of Witness TF2-096 on which the Trial Chamber relied has to be evaluated in light of all of the evidence. The Prosecution argues that it was open to a reasonable Trial Chamber to conclude that the Witness TF2-096 identified Kondewa[379] based on her direct evidence that she saw him shoot one of the town commanders, who then fell. On the basis of all the evidence a reasonable trier of fact could have found Kondewa responsible beyond reasonable doubt.

(a) Alleged Error in Relying on Uncorroborated Hearsay Testimony of one Witness and Inference of Guilt Drawn from Circumstantial Evidence

195. The main issue under this ground of appeal concerns the Trial Chamber’s evaluation of Witness TF2-096’s testimony. The Trial Chamber found that Witness TF2-096 saw Kondewa shoot one of the town commanders.[380] The next morning, Witness TF2-096 also saw two graves and was told that the town commanders were buried in them.[381] In response to the Prosecution’s question, “do you know what eventually happened to this man you saw being shot?” Witness TF2-096 responded that the next day she was told by the Kamajors that “the two people dancing yesterday were in those graves.”[382]

196. First, Kondewa submits that the evidence relied on by the Trial Chamber in finding that the Town Commander actually died was “skeletal at best” and did not establish that the Town Commander was dead.[383] Second, Kondewa argues that the Trial Chamber erred in relying solely on this uncorroborated hearsay evidence of Witness TF2-096 in finding Kondewa guilty for committing the murder of the town commander,[384] as the Trial Chamber failed to exercise the appropriate caution in reviewing the hearsay evidence.[385] Third, Kondewa submits that the Trial Chamber erred in its reliance on circumstantial evidence to convict him of murder because “inferences reasonably to be drawn from the evidence must not only be consistent with Kondewa’s guilt but inconsistent with every reasonable hypothesis of Kondewa’s innocence.”[386] He asserts that a number of alternative explanations exist, such as that the Town Commander could have been murdered by someone else.[387]

197. In response, the Prosecution argues that the Trial Chamber took into account the hearsay evidence only as corroborating the eyewitness testimony of Witness TF2-096.[388] Therefore, the Prosecution submits that this evidence and the inferences to be drawn from all of the relevant evidence in the case as a whole were not only consistent with Kondewa’s individual responsibility for shooting and killing one of the town commanders, but were inconsistent with any reasonable hypothesis of Kondewa’s innocence.[389] The Prosecution argues that Witness TF2-096’s testimony that the Town Commander “fell” should naturally be understood as a statement that the victim was shot dead.[390] The Prosecution argues that this was the understanding of everyone in the courtroom including the Defence Counsel, as there was no objection to the Prosecution’s subsequent question about how the witness knew the person who killed the town commander.[391]

198. Before assessing whether the Trial Chamber erred in its application of the law to the facts, the Appeals Chamber considers it necessary to set out the applicable law. The Appeals Chamber considers that as a matter of law it is permissible to base a conviction on circumstantial evidence and/or hearsay evidence.[392] Because hearsay evidence is admissible as substantive evidence in order to prove the truth of its contents, the Appeals Chamber considers that establishing the reliability of hearsay evidence is of paramount importance.[393]

199. Kondewa’s reliance on ICTY and ICTR case law for the proposition that the ad hoc Tribunals “have disregarded uncorroborated hearsay evidence related to an accused’s participation in murder because such evidence is seen as unreliable”[394] is noted. However, although the jurisprudence from other Courts is of great assistance in determining a question of law, whether a particular Trial Chamber erred in its application of the law to the facts, should be determined on the facts of each case. Further, the Appeals Chamber notes that, as a matter of law, a Trial Chamber may convict an accused on the basis of a single witness, although such evidence must be assessed with the appropriate caution, and care must be taken to guard against the exercise of an underlying motive on the part of the witness.[395] Corroboration of evidence is not a legal requirement, but rather concerns the weight to be attached to the evidence.[396] Any appeal based on the absence of corroboration must be against the weight which a Trial Chamber attaches to the evidence in question.[397]

200. It is common place that a criminal tribunal may convict on circumstantial evidence provided that the only reasonable inference to be drawn from such evidence leads only to the guilt of the accused. When such evidence is capable of any other reasonable inference it is not reliable for the purposes of convicting an accused.

201. Witness TF2-096 testified that she saw Kondewa shoot one of the town commanders and that he fell. Immediately after witnessing this incident, the witness ran away. The Appeals Chamber finds that the fact that she did not herself witness that the town commander was dead, leaves the possibility open that someone else may have killed the town commander. The Trial Record does not contain any evidence corroborating the veracity of Witness TF2-096’s testimony that the Kamajors identified the graves of the two people dancing. Furthermore, no evidence indicates the identity of the Kamajors or whether they were present during the incident during which Witness TF2-096 saw Kondewa shoot the town commander. In addition, no further evidence concerned whether the town commander died. No nexus exists between Kondewa’s act and the death of the town commander. The evidence that the town commander died is insufficient and, therefore, the offence of murder has not been proved.

202. Therefore, because Witness TF2-096’s testimony did not establish that the town commander died, no reasonable trier of fact could have found that the only reasonable inference was that Kondewa killed the town commander. Further, even if it had been established that the Town Commander died, someone else could have killed the town commander after Witness TF2-096 ran away, given that it has not been established that the town commander died because of Kondewa’s shot.

203. Having found that the death of the Town Commander was not proved beyond reasonable doubt, the Appeals Chamber comes to the conclusion that the Trial Chamber was in error in finding that the Town Commander was killed by the Kamajors as alleged in the Indictment.

C. Kondewa’s Third Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Moyamba District

205. Kondewa alleges an error in law and in fact by the majority of the Trial Chamber, Justice Thompson dissenting, in finding that the Prosecution has proved beyond reasonable doubt that he was individually criminally responsible as a superior pursuant to Article 6(3) for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute (Count 5), in Moyamba District.[398] Similar to his First Ground of Appeal, Kondewa in essence challenges the Trial Chamber’s application of the “effective control” test to establish that a superior-subordinate relationship existed between him and his alleged subordinates.

206. The Trial Chamber found that even though evidence of Kondewa’s de jure status as High Priest was inconclusive to establish beyond reasonable doubt that he had effective control over Kamajors in Moyamba District, he was nevertheless responsible as a superior for one particular incident of pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute, committed in Moyamba District.[399] The incident involved the looting of a Mercedes Benz car, a generator, car tires and other gadgets by Kondewa’s alleged subordinates (“Moyamba looting incident”).[400]

“[i]n November 1997, Kamajors under the control of Kondewa took TF2-073’s Mercedes Benz from his home in Sembehun. The Kamajors said that they were Kondewa’s Kamajors and that they had come from Talia, Tihun, Gbangbatoke and other surrounding villages. Three of them introduced themselves as Steven Sowa, Moses Mbalacolor and Mohamed Sankoh. Mohamed Sankoh said he was Deputy Director of War under Norman. The car was eventually given to Kondewa, who kept the car and used it without permission.

On the same occasion these Kamajors also took a generator, car tires and other gadgets from TF2-073.”[401]

208. The Trial Chamber found that both the general requirements of war crimes and the specific elements of pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute, had been met, and that the incident demonstrated that the looting was done by Kamajors who operated under the direct orders of Kondewa.[402] Furthermore, Kondewa’s knowledge that his subordinates committed this crime was established on the basis that the looted car was then given to him to drive around.[403] The Trial Chamber further found that Kondewa not only failed in the exercise of his duties to punish his subordinates, but chose instead to support their actions by using the looted vehicle himself.[404]

209. Kondewa submits that the only evidence relied on by the Trial Chamber to find that a superior-subordinate relationship existed between him and these Kamajors was his acceptance of the looted car after the offence had been committed and after the car had been used by Norman himself.[405] He argues that the Trial Chamber erred in relying on this single piece of evidence, and that the evidence could not be relied on to establish the existence of a superior-subordinate relationship at the time the offence was committed.[406] Kondewa therefore requests that the Appeals Chamber reverse the Trial Chamber’s finding that he was responsible as a superior for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute (Count 5) in Moyamba District.

210. The Prosecution relies on its submissions in response to Ground One of Kondewa’s appeal. In particular, the Prosecution reiterates that the Trial Chamber did not base its findings on the existence of a superior-subordinate relationship on Kondewa’s de jure position as High Priest alone, nor on any single piece of evidence as alleged by the Defence, but on the evidence in the case as a whole.[407] Furthermore, the Prosecution submits that evidence relied on by the Trial Chamber to establish effective control also included the fact that at the time of the alleged incident, the Kamajors stated that they were “Kondewa’s Kamajors.”[408] According to the Prosecution it is “clearly possible and consistent with logic and principle” for Kondewa to have had effective control over some but not all Kamajors.[409]

211. The Prosecution submits therefore that on the basis of the evidence in the case as a whole, it was open to a reasonable trier of fact to conclude that Kondewa had effective control over the perpetrators of the Moyamba looting incident.[410]

212. The issue raised in this ground is whether, based on the evidence as a whole, a reasonable tribunal of fact could conclude that a superior-subordinate relationship existed between Kondewa and his alleged subordinates. In reaching its findings on the superior responsibility of Kondewa in respect of this incident, the Trial Chamber relied on the following evidence:

“(i) that at the time the crime was committed, the Kamajors said they were “Kondewa’s Kamajors”;

(ii) that they also said they had come from villages including Talia and Tihun both of which are in Bonthe District;

(iii) that the vehicle was taken to Talia and given to Norman then to Kondewa; and

213. Based on this evidence the Trial Chamber concluded that this particular crime in Moyamba District was carried out by Kamajors operating under the direct orders of Kondewa.[412]

214. It is evident that apart from Kondewa’s de jure status as High Priest of all the Kamajors in the country, a status which the Trial Chamber found did not by itself give Kondewa effective control over the Kamajors, the only other evidence relied on by the Trial Chamber consisted of statements made by the alleged perpetrators and the use of the vehicle by Kondewa after it had first been given to Norman. The Appeals Chamber finds that the fact that the Kamajors in question identified themselves as “Kondewa’s Kamajors” is insufficient to establish the existence of a superior-subordinate relationship beyond reasonable doubt, the statement having been made in the absence of Kondewa. Furthermore, the fact that they also stated that they had come from Talia and Tihun, among other villages, was insufficient. The Trial Chamber, in its findings on the responsibility of Kondewa in Bonthe District, found that apart from the Kamajors who carried out the 15 February 1998 attack on Bonthe, there was no evidence on which it could conclude beyond reasonable doubt that “Kondewa did exercise the same degree of control over other Kamajor commanders and fighters who operated in the surrounding areas of Bonthe Town, prior to the attack or subsequently.”[413]

215. There was thus, insufficient evidence linking Kondewa to these particular Kamajors that could establish beyond reasonable doubt that he had a superior-subordinate relationship with them. The Appeal Chamber finds, therefore, that on the evidence it was not open to a reasonable tribunal of fact to conclude that Kondewa was individually criminally responsible as a superior for this particular act of pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute in Moyamba District.

216. For the reasons set out above, the Appeals Chamber grants Kondewa’s Third Ground of Appeal and reverses the verdict of guilt on Count 5 and substitutes a verdict of not guilty.

D. Kondewa’s Sixth Ground of Appeal: Cumulative Convictions and Collective Punishments

217. The majority of the Trial Chamber, Justice Thompson dissenting, convicted Kondewa of collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7), as well as for three other war crimes, namely, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and Count 4, respectively); and pillage, punishable under Article 3.f. of the Statute (Count 5).[414] In his Sixth Ground of Appeal,[415] Kondewa submits that the majority of the Trial Chamber erred in law in entering a conviction for collective punishments (Count 7) which is impermissibly cumulative with his convictions for murder (Count 2), cruel treatment (Count 4) and pillage (Count 5), because they are based on the same conduct.[416]

218. Kondewa does not dispute the Trial Chamber’s pronouncement on the legal standard for cumulative convictions,[417] but instead takes issue with its application.[418] Kondewa asserts that the Indictment limits the crimes that can be considered for collective punishments to the crimes charged in Counts 2, 4 and 5. He argues that while the Prosecution relied upon the same conduct to charge collective punishments in Count 7 and the crimes in Counts 2, 4 and 5, the Trial Chamber impermissibly widened the interpretation of punishment for the purposes of collective punishments beyond the conduct charged in Counts 2, 4 and 5.[419] In particular, the Trial Chamber found that “the term punishment in the first element [of collective punishments] is meant to be understood in its broadest sense and refers to all types of punishments.”[420] Kondewa submits that the Trial Chamber therefore erred in finding that “because the actus reus and the mens rea of collective punishments can be broader than the ‘punishments’ of Count [sic] 1-5, it is permissible to enter convictions under Count 7 as well as Counts 2-5.” [421]

219. The Prosecution argues that when an accused has been charged with two crimes in relation to the same conduct, the relevant question is whether the two statutory provisions, as a matter of law, both contain a materially distinct element not contained in the other.[422] The question is not whether the two statutory provisions, as a matter of fact, are each based on a material fact on which the other is not based.[423] The Prosecution argues that the relevant crimes, as a matter of law, contain materially distinct elements and that cumulative convictions are therefore permissible.[424]

220. The Trial Chamber held that the “issue of cumulative convictions arises when more than one conviction is imposed for the same criminal conduct” and that multiple convictions for the same conduct are permissible if each statutory provision has a materially distinct element not contained in the other.[425] Elements are materially distinct from one another if each requires proof of a fact not required by the other.[426] The Trial Chamber stated that “multiple convictions may only be upheld if both of the provisions require proof of an element that is not required by the other provision.”[427] The Appeals Chamber agrees with the Trial Chamber’s pronouncement of the law in this regard.

221. Before examining the Trial Chamber’s application of the law on cumulative convictions to the crimes at issue in this ground of appeal, the Appeals Chamber first sets forth the following elements for the crime of collective punishments under Article 3.b. of the Statute as stated by the Trial Chamber:

(i) A punishment imposed collectively upon persons for omissions or acts that they have not committed; and

(ii) The Accused intended to punish collectively persons for these omissions or acts or acted in the reasonable knowledge that this would likely occur.[428]

222. Article 3.b. of the Statute is based on Article 33 of the Fourth Geneva Convention and Article 4(2)(b) of Additional Protocol II to the Geneva Conventions, both of which prohibit collective punishments against protected persons.[429] The prohibition of collective punishments embodies an elementary principle of humanity that penal liability is personal in nature.[430] Restrictive interpretations of collective punishments must be avoided because the prohibition of this crime is one of the fundamental guarantees of humane treatment.[431] The prohibition on collective punishments must be understood in its broadest sense so as to include not only penalties imposed during normal judicial processes, such as sentences rendered after due process of law, but also any other kind of sanction such as a fine, confinement or a loss of property or rights.[432]

223. The Appeals Chamber emphasises that a “punishment” for the purposes of the crime of collective punishments is an indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible. As such, a “punishment” is distinct from the targeting of protected persons as objects of attack. The targeting of protected persons as objects of war crimes and crimes against humanity may not necessarily be predicated upon a perceived transgression by such persons and therefore does not constitute collective punishments. Thus, the mens rea element of collective punishments represents the critical difference between this crime and the act of targeting. While targeting takes place on account of who the victims are, or are perceived to be, the crime of collective punishments occurs in response to the acts or omissions of protected persons, whether real or perceived. The targeting of protected persons who are residents of a particular village, for instance, is therefore distinct from the collective punishment of protected persons in a given village who are perceived to have committed a particular act, such as providing rebel forces with shelter.

224. The Appeals Chamber finds that the correct definition of collective punishments is:

225. In light of the above definition of collective punishments, it is the view of the Appeals Chamber that convictions are permissible for collective punishments, in addition to murder, cruel treatment and pillage. The crime of collective punishments requires proof of an intention to punish collectively, which murder, pillage and cruel treatment do not. In addition, murder requires the death of the victim, which collective punishments does not and pillage requires proof of appropriation which the crime of collective punishments does not. Finally, cruel treatment requires proof of serious mental or physical suffering or injury, which collective punishments does not. Thus, because each of these crimes requires proof of materially distinct elements, cumulative convictions are permissible in this instance.

226. Despite our finding that the Trial Chamber did not err in determining that cumulative convictions are permissible for the crime of collective punishments in addition to murder, cruel treatment and pillage, the Appeals Chamber must, nonetheless, re-examine the Trial Chamber’s factual findings on collective punishments in light of the Appeals Chamber’s definition of the elements of this crime.

227. In relation to the commission of murder and cruel treatment in Tongo, the Trial Chamber found both Fofana and Kondewa liable pursuant to Article 6(1) for aiding and abetting in the preparation of the commission of collective punishments under Count 7.[433] In relation to the commission of murder and cruel treatment in Koribondo, the Trial Chamber found Fofana liable as a superior, pursuant to Article 6(3), for the commission of collective punishments under Count 7.[434] In relation to the commission of murder, cruel treatment and pillage in Bo District, the Trial Chamber found Fofana liable as a superior pursuant to Article 6(3), for the commission of collective punishments under Count 7.[435] Finally, in relation to the commission of murder, cruel treatment and pillage in Bonthe District, the Trial Chamber found Kondewa liable as a superior pursuant to Article 6(3), for the commission of collective punishments under Count 7.[436]

228. The Trial Chamber relied on numerous factual findings concerning murder, cruel treatment and pillage to support its convictions of Fofana and Kondewa for the commission of collective punishments in the various locations mentioned above. The Appeals Chamber’s examination of these findings reveals that the victims of murder, cruel treatment and pillage were being targeted in these places because of their identities or their locations at the time of the Kamajors’ attacks. In particular, the Kamajors targeted individuals who were identified or accused of being rebels and collaborators, or who were related to rebels.[437] In addition, the Kamajors targeted Loko, Limba and Temne tribe members,[438] policemen[439] and civilians in close proximity to the National Diamond Mining Company (NDMC) Headquarters in Tongo.[440] Finally, many other civilians appear to have been targets of murder, cruel treatment and pillage merely by chance, due to the indiscriminate nature of the attacks on these locations.[441] Thus, the Trial Chamber’s factual findings indicate that the individuals who came under attack in Tongo, Koribondo, Bo District and Bonthe District were being targeted due to their perceived identities, their locations, or by sheer chance.

229. The Trial Chamber’s factual findings do not, however, indicate that these individuals were objects of attack because of perceived acts or omissions for which the Kamajors sought to punish them.

230. The Appeals Chamber holds that Trial Chamber’s factual findings do not prove beyond reasonable doubt that the perpetrators of these crimes were attacking protected persons in these areas with the intent to collectively punish them for their perceived acts or omissions. In the result, the Appeals Chamber finds that the requisite mens rea for collective punishments, which represents the key distinction between targeting and collectively punishing, has not been satisfied. Given that the mens rea requirement for collective punishments has not been met, the Appeals Chamber need not examine whether the actus reus has been fulfilled.

231. For these reasons, the Appeals Chamber, Justice Winter dissenting, reverses the Trial Chamber’s verdict of Fofana and Kondewa for collective punishments under Count 7 and substitutes a conviction of not guilty.

232. Paragraph 25 of the Indictment sets out the material facts upon which Fofana and Kondewa were charged with murder as a crime against humanity under Article 2.a. of the Statute (Count 1) and as a war crime under Article 3.a. of the Statute (Count 2). The material facts of acts of physical violence and infliction of mental harm or suffering are set out in paragraph 26 of the Indictment, charging both Fofana and Kondewa with inhumane acts, as a crime against humanity under Article 2.g. of the Statute (Count 3) and cruel treatment as a war crime under Article 3.a. of the Statute (Count 4).

233. The Trial Chamber convicted Fofana and Kondewa under Counts 2 and 4, finding that the legal requirements for murder and cruel treatment as well as the general requirements for war crimes were satisfied.[442] However, the Trial Chamber acquitted them of Counts 1 and 3 because it held that the general requirements of crimes against humanity were not satisfied in this case.

234. The Prosecution submits that the Trial Chamber erred in law and in fact in not finding that the general requirement for crimes against humanity was satisfied.[443]

235. The Trial Chamber confirmed the following general requirements (or chapeau elements) of crimes against humanity as follows:

236. The Trial Chamber held that the first and second of these elements were satisfied in this case.[445] It found that the attacks carried out by the Kamajors in Tongo in late November/early December 1997, early January 1998 and on 14 January 1998; in Koribondo between 13 and 15 February 1998; in Bo Town between 15 and 23 February 1998; in Bonthe on 15 February 1998; and in Kenema between 15 and 18 of February 1998, constituted “part of a widespread attack.”[446] The Trial Chamber considered that “in the light of the broad geographical area over which these attacks occurred, . . . the requirement of a widespread attack has been established in this case.”[447]

237. Turning to the third element, the Trial Chamber stated, as held in the Kunarac Appeal Judgment, that this element requires that the civilian population “be the primary rather than an incidental target of the attack.”[448] The Trial Chamber found that:

“the evidence adduced does not prove beyond reasonable doubt that the civilian population was the primary object of the attack. By contrast, there is evidence that these attacks were directed against the rebels or juntas that controlled towns, villages, and communities throughout Sierra Leone. In this regard the Chamber recalls the admission of the Prosecutor that ‘the CDF and the Kamajors fought for the restoration of democracy.’”[449]

238. As a result, the Trial Chamber considered that the requirement that an attack be directed against any civilian population was not satisfied beyond reasonable doubt, and therefore acquitted Fofana and Kondewa under Count 1 (murder as a crime against humanity) and Count 3 (inhumane acts as a crime against humanity).

239. Under this Ground of Appeal, the main issue that arises is whether the Trial Chamber erred in law or in fact in finding that the third element of crimes against humanity had not been satisfied. The Appeals Chamber will consider, in turn, the alleged errors of law and of fact raised by the Prosecution.

240. The Prosecution contends that the Trial Chamber erred in its legal interpretation of the third element of crimes against humanity. The Prosecution submits that the Trial Chamber’s finding that the civilian population was not the primary object of the attacks was based on the evidence that “these attacks were directed against the rebels or juntas.”[450] According to the Prosecution, “it is apparent from this finding that the Trial Chamber considered, as a matter of law, that an attack will not be one that is “directed against” a civilian population if civilians are attacked in the course of attacks directed against opposing forces.”[451] The Prosecution submits that under the case law of the ICTY and ICTR, the expression that the civilian population be the “primary object of the attack” was not intended to mean that widespread or systematic attacks against civilian populations will not constitute crimes against humanity merely because they occurred during attacks on opposing forces or in the course of operations that had a military objective.[452] It further submits that the Trial Chamber erred in law in finding that the fact that CDF “fought for the restoration of democracy” may in any way be a material consideration for the purpose of crimes against humanity.[453]

241. In response, Kondewa states that the Trial Chamber was correct in finding that the general requirements of crimes against humanity were not satisfied in this case. He submits that the Trial Chamber applied the correct legal standard in concluding that the civilian population was not the primary object of the attack.[454] He further submits that the Trial Chamber did not find that since there was an attack against the rebels, there could not be an attack against the civilian population.[455] Instead, the Trial Chamber simply found that, based on the evidence, the civilian population was not directly and specifically attacked as the primary target.[456] Kondewa further submits that the Trial Chamber was correct to state that the CDF “fought for democracy,” in view of the fact that the existence of a plan or policy can be relevant to proving that an attack was directed against a civilian population.[457]

242. In response, Fofana concurs with the reasoning of the Trial Chamber. He argues that the factors outlined in Kunarac for determining whether the attack was directed against a civilian population are not cumulative and the Trial Chamber was not required to ascertain that all factors were met for the purpose of crimes against humanity[458] and that the CDF never had a policy of terrorising civilians.[459]

243. In reply to Kondewa’s submission that the absence of a plan or a policy to target the civilians may be relevant to ascertain that there was no “attack directed against a civilian population,” the Prosecution contends that a distinction must be drawn between the “purpose of an attack,” e.g., contributing to the reinstatement of democracy and the “target” of an attack, which may be a civilian population.”[460]

244. As has been earlier stated, the Trial Chamber found that the requirement that the attack be directed against the civilian population was not satisfied in this case.

245. The Prosecution submits that two legal errors arise from that finding: first, it contends that the Trial Chamber erred in considering that the fact that CDF fought for democracy was a relevant factor; and second, that the Trial Chamber incorrectly considered that, as a matter of law, an attack is not directed against a civilian population if civilians are targeted in the course of an attack against opposing forces.

(i) Whether Fighting for Democracy May be a Material Element for the Purposes of Crimes Against Humanity

246. The Prosecution submits that “the elements of crimes against humanity prohibit attacks against the civilian population regardless of their purpose.”[461] The Appeals Chamber notes Kondewa’s contentions that while the existence of a plan or policy can be evidentially relevant in proving that an attack was directed against a civilian population – although it is not a legal element of crimes against humanity – “it should be evidentially relevant in proving that an attack was not directed against a civilian population.”[462]

247. In the opinion of the Appeals Chamber, it is manifestly incorrect to conclude that widespread or systematic attacks against a civilian population cannot be characterised as crimes against humanity simply because the ultimate objective of the fighting force was legitimate and/or aimed at responding to aggressors. The Appeals Chamber deems it necessary to emphasise that rules of international humanitarian law apply equally to both sides of the conflict, irrespective of who is the “aggressor,” and that the absolute prohibition under international customary and conventional law on targeting civilians precludes military necessity or any other purpose as a justification. The Appeals Chamber holds that it is no justification that the perpetrators of a crime against humanity were fighting for the restoration of democracy.

248. The Trial Chamber’s finding shall not be interpreted as legitimizing any unlawful acts committed against the civilians. The Trial Chamber’s Judgment, read as a whole, makes it clear that the Trial Chamber underscored the prohibition on targeting civilians and the criminality of any acts directed against such protected persons. In its description of the applicable law on crimes against humanity, the Trial Chamber recalled that “there is an absolute prohibition against targeting civilians in customary international law.”[463]

249. For these reasons, the Appeals Chamber is unable to find that references by the Trial Chamber to the purpose for which the CDF was fighting was a decisive consideration in its determination of the general requirements for crimes against humanity.

(ii) Whether an Attack Could Not be One “Directed Against A Civilian Population” if Civilians are Attacked in Connection with Legitimate Military Operations

250. The Prosecution argues that the challenged finding of the Trial Chamber implies that, as a matter of law, an attack could not be one “directed against a civilian population” if civilians are attacked in the course of, or immediately after, an attack directed against opposing forces.[464] At the appeals hearing, the Prosecution specified that it would be incorrect to consider that an attack against a civilian population occurring at the same time as, or immediately after a military attack and undertaken by the same fighting forces “must all be seen as one attack.”[465] Kondewa agreed with this interpretation of the law.[466]

251. The Appeals Chamber finds no ambiguity in the Trial Chamber’s articulation of the applicable law. The Trial Chamber did not exclude the possibility that these attacks were directed against a civilian population merely because there was proof of military attacks targeting the opposing forces. Instead, the Trial Chamber found that, while there were attacks against the rebels or juntas, there was no evidence beyond reasonable doubt of the existence of parallel and coexisting attacks directed against the civilian population. The Trial Chamber found that a number of civilians were killed and subject to mistreatments.[467]

252. The Appeals Chamber is unable to conclude that the Trial Chamber considered that, as a matter of law, a military attack cannot coexist with an attack directed against a civilian population.

253. The Prosecution submits that based on the findings and the evidence regarding the attacks on Tongo, Koribondo, Bo Town, Bonthe District and Kenema District, it is evident that civilians were deliberately targeted.[468] In the Prosecution’s submission, a review of the evidence accepted by the Trial Chamber demonstrates a “pattern of victimisation of civilians” and makes it clear that the attacks against the civilians “were specifically intended to make victims out of civilians” and that “civilians were not merely incidental casualties of an attack ‘directed against the rebels or juntas.’”[469] The Prosecution bases this assertion on the manner in which the crimes were perpetrated[470] and on the instructions, directions and incitement which the leaders of the Kamajors gave prior to these attacks or as they happened.[471]

254. Kondewa responds that the evidence does not support a finding that the civilian population was the primary object of the attacks. Kondewa admits that perceived collaborators are accorded civilian status under international law.[472] He also concedes that certain civilians and collaborators were deliberately and directly targeted.[473] However, relying on the Limaj Trial Judgment, he contends that “those perceived and suspected collaborators . . . were targeted as individuals rather than as members of a larger targeted civilian population.”[474] In addition, relying on the case law of the ICTY and ICTR, Kondewa submits that to establish that the attack was directed against a civilian population, it must be shown that civilians are targeted because of some distinguishable characteristic of a civilian population.[475] In this case, however, individual civilians were attacked because of their suspected affiliation with the fighting forces, not because of a “freestanding characteristic of the individual.”[476]

255. Fofana responds that “all the factual findings in the present case glaringly illustrated that there was no attack on a mass number of civilians that can qualify or be regarded as a ‘population.’ To the contrary, the attacks were . . . directed against the opposing warring factions; and . . . a limited and randomly selected number of individuals, and in some cases groups of civilians incidentally became collateral victims of the attacks.”[477]

256. In reply, the Prosecution emphasises that the Trial Chamber found that civilians were specifically targeted in the relevant attacks,[478] and that the CDF specifically targeted civilians who were perceived collaborators of the enemy.[479] The Prosecution accordingly states that the Defence cannot argue that civilians were merely “collateral victims” of a military attack.[480] It further objects to Kondewa’s reliance on the Limaj Trial Judgment, stating that, unlike in Limaj, in this case there was a plan and specific orders from Norman to target civilians and civilians were attacked indiscriminately in large numbers.[481] The Prosecution finally contends that a discriminatory intent is a requirement only for the crime of persecution as a crime against humanity.[482]

257. Relying on Kunarac Appeal Judgment, the Trial Chamber stated that “directed against a civilian population” requires “that the civilian population be the primary rather than incidental target of the attack.”[483] In Kunarac, the ICTY Appeals Chamber held that:

“In order to determine whether the attack may be so directed [against a civilian population], the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.”[484]

258. The Trial Chamber stated that “civilian population” must be interpreted broadly. It includes “all those persons who are not members of the armed forces or otherwise recognised as combatants.”[485] It also stated that the population must be predominantly civilian in nature and that the presence of certain non-civilians in their midst does not change the character of the population.[486] It further stated that the use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been the subject of that attack.[487] The Trial Chamber finally stated that:

“the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 2. It would therefore be sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a limited and randomly selected number of individuals.”[488]

“A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. 2. The civilian population comprises all persons who are civilians. 3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”

The Appeals Chamber considers that Article 50(1) of the Additional Protocol I is a useful tool in determining a “civilian population.” The Appeals Chamber agrees with the view expressed in several judgments of international tribunals that “the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic”[489] and “[t]he civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”[490] In line with this principle, the Appeals Chamber takes the view that the presence of rebels or juntas within the victims does not deprive the population of its civilian character.

260. The Appeals Chamber further considers that perceived “collaborators” are accorded civilian status under international law.[491] The Appeals Chamber also notes that the Trial Judgment mentions the killings and mistreatments of a number of police officers. The Trial Chamber found that, as a general presumption and in the execution of their typical law enforcement duties, police forces are considered civilians for the purpose of international humanitarian law, unless they operate under the control of the military.[492]

261. The Trial Chamber noted in this regard that the Sierra Leone Police operated under the control of a civilian authority.[493] Nonetheless, as stated by the Trial Chamber, the status of police officers has to be determined on a case-by-case basis. In its factual findings in respect to the attack in Bo, the Trial Chamber found that, in the early stage of the conflict in Sierra Leone the police were duty bound to support the soldiers, but that they ceased to support the junta in late 1997,[494] and that the Kamajors “turned against the police because of their ‘alleged collaboration with the junta.’”[495] The Appeals Chamber further notes, from the Trial Judgment, that “while the Kamajors were in Bo, they captured and killed police officers. [. . . ] The police that had been killed did not have ammunition.”[496] The Appeals Chamber therefore, holds, that police officers who have been subject to killings and mistreatments in Bo are “civilians.” In Kenema, a number of police officers were also killed when the Kamajors entered Kenema Town on 15 February 1998.[497] The Trial Judgment shows no findings that those police officers were armed or fought against the Kamajors. The following day, upon the return of the juntas to Kenema, there were exchange of fire for several hours between the Kamajors and the rebels–among whom were police officers who were fighting.[498] In this context, the Appeals Chamber does not consider those police officers as “civilians.”

262. The Appeals Chamber now turns to Kondewa’s submission that, to establish that the attack was directed against a civilian population, it must be shown that civilians were targeted because of some distinguishable characteristic of the civilian population.[499] He relies in this regard on the case law of the ICTY and ICTR, where the Kosovo Albanian population, the Croats, the Bosnian Muslims, and the Tutsi were found to be a “civilian population.”[500] His submission implies that for crimes against humanity to be committed civilians must be targeted on a specific discriminatory ground.

263. In the opinion of the Appeals Chamber the argument is misconceived and inconsistent with the well-established principle that discriminatory intent is only a requirement for the crime of persecution,[501] and not for other crimes against humanity. Further, while several cases have held that crimes against humanity were committed as a result of attacks against civilian populations sharing a common nationality, race or ethnicity, the same has also been found in several cases where civilians were targeted based on less defined grounds.[502] In some of these cases alleged or perceived opponents to a regime, faction or political party have been targeted.[503] Indeed, the Trial Chamber found in the AFRC Trial Judgment that attacks against the civilian population were “aimed broadly at quelling opposition to the regime and punishing civilians suspected of supporting the CDF/Kamajors.”[504]

264. The Appeals Chamber holds that as a matter of law perceived or suspected collaborators with the rebels or juntas, as in the present case, are likewise part of a “civilian population.” The Appeals Chamber will now turn to the main issue in this ground of appeal, in light of the Trial Chamber’s factual findings.

265. In determining whether the Trial Chamber erred in finding that the evidence adduced did not prove beyond reasonable doubt that the attacks were “directed against a civilian population” the Appeals Chamber will now consider the relevant findings of fact made by the Trial Chamber in respect to each of the locations where the attacks have been carried out by the Kamajors, namely: in Tongo in late November/early December 1997, early January 1998 and on 14 January 1998; in Koribondo between 13 and 15 February 1998; in Bo Town between 15 and 23 February 1998; in Bonthe on 15 February 1998; and in Kenema between 15 and 18 February 1998.[505]

266. The Prosecution charged Fofana and Kondewa with murder as a crime against humanity for the unlawful killing of an unknown number of civilians and those identified as “collaborators,” along with captured enemy combatants at or near Tongo Field and at or near the towns of Lalehun, Kamboma, Konia, Talama, Panguma and Sembehun, between about 1 November 1997 and 30 April 1998.[506] The Prosecution also charged the Accused with inhumane acts as a crime against humanity for acts of physical violence and infliction of mental harm against an unknown number of civilians in Tongo Field and the surrounding areas between 1 November 1997 and 30 April 1998[507] and for intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilians, through acts of screening for collaborators, unlawfully killing suspected collaborators, often in plain view of friends and relatives, illegal arrest and unlawful imprisonment of collaborators, the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot, in the towns of Tongo Field between November 1997 and December 1999.[508]

267. The Trial Chamber found that the attacks carried out by the Kamajors in Tongo in late November/early December 1997, early January 1998 and on 14 January 1998 constituted part of a “widespread attack,” within the meaning of crimes against humanity.[509]

268. The Trial Chamber found that, at the passing out parade held between 10-12 December 1997, Norman ordered the Kamajors to attack Tongo because its possession would “determine the outcome of the war.”[510] The evidence accepted by the Trial Chamber demonstrates that three main attacks on Tongo Town were launched by the Kamajors, one of the key commanders was Kamabote.[511] The first attack, which was launched in December 1997, aimed at determining the rebels’ location.[512]

269. The second attack was launched in early January 1998.[513] More than 1000 civilians attempting to flee the attack were detained at a rebel checkpoint.[514] The Kamajors took control of the civilians and led them to Kenema.[515] In Talama, they searched for their belongings and ordered them to form queues according to their tribes.[516] Loko, Limba and Temne tribe members were ordered to form one queue, which contained 150 men and one 12-year-old boy.[517] Kamabote killed the boy, when he discovered he was related to a rebel.[518] On the orders of Kamabote, the Kamajors killed each of the 150 people with cutlasses.[519] They slit open the stomach of one victim and displayed his entrails in a bucket before the remaining civilians.[520] The remaining civilians were told by BJK Sei that the Kamajors had been unable to capture Tongo, that they would attack it again and that anyone that had not left the town would be killed.[521] Witness TF2-035 had survived the killing of the Limbas in Talama, claiming he was a Madingo. When Kamabote discovered he was a Limba, he ordered a 12 year-old boy to kill him.[522] He was shot but managed to escape into the bush.[523]

270. The third attack on Tongo was launched on 14 January 1998.[524] Many civilians had received warnings of the attack and most of those that could leave did so.[525] At the beginning of the attack, there was gunfire and thousands of civilians ran towards the NDMC Headquarters.[526] At least six individuals were shot, including Witness TF2-015, three women, a man named Joskie and a Fullah boy.[527] At the entrance of the NDMC Headquarters, there were hundreds of corpses of men, women and children.[528] After exchange of fire between the rebels and the Kamajors, the rebels began to retreat; before the rebels snuck away, a bomb dropped among the civilians.[529] A Kamajor chopped at three people who had been lying on the ground to avoid the crossfire.[530]

271. After the rebels’ retreat, civilians were gathered at the football field. BJK Sei told the Kamajors he would dismiss anyone he saw killing people.[531] Meanwhile, Kamabote asked two women to identify rebels.[532] Two men identified as rebels were shot.[533] Ten others were led behind the NDMC Headquarters where cows are slaughtered.[534] Another group of 200 men and women, identified as rebels, were taken behind the NDMC Headquarters.[535] Dr Blood, a man identified as a rebel was killed by Kamabote, so was Fatmata Kamara for having cooked for the rebels.[536] Witness TF2-048’s uncle, a woman and a child were killed.[537]

272. The following day, on 15 January 1998, 20 men accused of being rebels were hacked to death.[538] The civilians other than Limbas, Lokos and Temnes were allowed to leave.[539] The Kamajors said that Limbas, Lokos and Temnes should be killed.[540] However, a group of men speaking Liberian told everyone to go home; a Kamajor commander ordered the civilians to leave the Headquarters.[541] Another commander, however, ordered the Kamajors to shoot at the crowd and the Kamajors shot sporadically at the civilians. Many were hit by stray bullets and at least one died.[542] On the same day, outside the NDMC Headquarters, the Kamajors went to Witness TF2-048’s house, showed his brother a list of Limbas to be killed, and they cut his throat with machete and mutilated his body.[543] At another check point, the Kamajors took the belongings of the civilians, and hacked to death a man and a boy for carrying, respectively, a photograph of a rebel and a wallet that resembled SLA fatigues.[544]

273. On the way to Bunnie, the Kamajors fired at a group of civilians, who were organised into lines, killing many of them.[545] Men and women were separated; five men were killed after making them stare at the sun.[546] The day after, remaining civilians were joined by another group of civilians numbering 65 people.[547] At Kamboma bridge, they were attacked by the Kamajors who said they received orders to kill anyone who passed by.[548] They were separated into two lines. Except one who survived his injury, each of the 65 civilians was killed.[549] On the same day, at Dodo Junction, the Kamajors struck a woman on the back and cut off the hand of a man identified as a rebel.[550] Finally, in Lalehun in mid-February 1998, Aruna Konowa was denounced as a rebel collaborator and was killed and disembowelled.[551] Brima Conteh, also denounced as the chief of the rebels, was decapitated and mutilated.[552]

274. The Prosecution charged Fofana with murder as a crime against humanity for the unlawful killing of an unknown number of civilians and those identified as “collaborators,” along with captured enemy combatants in locations in Bo District, including Koribondo in or about January and February 1998,[553] 1 November 1997 and 30 April 1998.[554] The Prosecution also charged the Accused with inhumane acts as a crime against humanity for intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilians, through acts of screening for collaborators, unlawfully killing suspected collaborators, often in plain view of friends and relatives, illegal arrest and unlawful imprisonment of collaborators, the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot, in Koribondo between November 1997 and December 1999.[555]

275. The Trial Chamber found that the attack carried out by the Kamajors in Koribondo between 13 and 15 February 1998 was “part of a widespread attack,” within the meaning of crimes against humanity.[556]

276. The Trial Chamber found that before the coup, Koribondo and its surroundings were controlled by the rebels and its capture by the Kamajors was expected to facilitate the movement of ECOMOG.[557] Between 1997 and 1998, the Kamajors launched various attacks on Korinbondo. At the Commanders’ meeting for Koribondo in early 1998, Norman said that the Kamajors should take it “at all costs” and told the commanders not to “leave any house or any living thing there, except mosque, church, the barri and the school,”[558] and that they “should destroy or burn everything in the town and that anyone left in Koribondo should be termed an enemy or a rebel and killed.”[559] At a meeting with Nallo in early 1998, Norman said that the capture of Koribondo had failed “because the civilians had given their children to the juntas in marriage and thus, they were all ‘spies and collaborators;’” and, therefore, that “‘anybody that was met there should be killed’ and nothing should be left ‘not even a farm’ or ‘[. . . ] a fowl.’”[560]

277. The final attack on Koribondo was launched on 13 February 1998 at 1:30 pm and lasted for about 45 minutes.[561] The Trial Chamber found that the following crimes were committed after the capture of Koribondo. On 15 February 1998, five Limba civilians accused of being junta members were beaten and mutilated by the Kamajors.[562] On the same day, two Limba civilians were mutilated and killed.[563] The following day, the Kamajors killed five men belonging to the junta and three of the soldiers’ wives, two of them in a gruesome manner.[564] The three womens’ bodies were disembowelled. The same day, the Kamajors killed, mutilated and decapitated Chief Kafala, accused of being a junta, in the presence of many people.[565] Lahai Bassie, an elderly person, was arrested and beaten by the Kamajors who accused him of being a collaborator because his son was a soldier. He died of his wounds one week later.[566] Further, on 13 February 1998, Witness TF2-032’s house was set on fire by Kamajors and between 13 and 15 February 1998, Kamajors went on a rampage and burnt 25 houses.[567]

278. After the capture of Koribondo, at the end of March 1998, Norman addressed an audience of 200 civilians and 400 Kamajors, and expressed his “disappointment” that the Kamajors did not do what they were asked to, stating that “inside Koribondo I only want . . . three houses . . . Oh, look at all these houses. I told you that I wanted the mosque, the court barri and one house where I would have to reside, but look at all this crowd that I am seeing here. You people are afraid of killing. Why?”[568]

279. The Prosecution charged Fofana with murder as a crime against humanity for the unlawful killing of an unknown number of civilians and those identified as “collaborators,” along with captured enemy combatants on or about January and February 1998, in locations in Bo District, including the District Headquarters town of Bo, Kebi Town, Kpeyama, Fengehun and Mongere.[569] The Prosecution also charged the Accused with inhumane acts as a crime against humanity for intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilians, through acts of screening for collaborators, unlawfully killing suspected collaborators, often in plain view of friends and relatives, illegal arrests and unlawful imprisonment of collaborators, the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot, in Bo and surrounding areas between November 1997 and December 1999.[570]

280. The Trial Chamber found that the attack carried out by the Kamajors on Bo Town between 15 and 23 February 1998 constituted “part of a widespread attack,” within the meaning of crimes against humanity.[571]

281. The Trial Chamber found that, at the commanders’ meeting for Bo in early January 1998, Norman addressed the Kamajors and told them to “kill enemy combatants and people who had connections with or supported the rebels and who were, therefore, worse than the combatants;”[572] he referred to them as “collaborators.”[573] The Kamajors were also told to “burn down houses and loot big shops.”[574] Norman added that the adult fighters were doing less than the children and were just eating and looting.[575]

282. The Trial Chamber found that, in early January 1998 the Kamajors attacked and captured Kebi Town, in Bo District, which was the location of the juntas’ Brigade Headquarters.[576] The Kamajors had left Bo after the coup.[577] At that time, the Kamajors turned against the police because of their alleged collaboration with the juntas.[578] Before launching the attack on Bo, Norman gave specific orders to Nallo to kill certain identified civilians in Bo who were labelled as “collaborators,” loot and burn their houses, loot the Southern Pharmacy and bring the medicines to Norman.[579] Specifically the name of MB Sesay was mentioned. Norman also ordered Nallo to kill the police officers.[580]

283. The junta soldiers left Bo on 14 February 1998;[581] therefore, when the Kamajors entered Bo on 15 February 1998, there were no forces fighting in Bo and they met no resistance.[582] They captured and killed unarmed police officers.[583] They killed eight police men,[584] beat OC Bundu, the SSD Boss,[585] killed Corporal Freeman,[586] mutilated Witness TF2-199, killed James Vandy, the Sub-Inspector of police and cut his body into pieces,[587] and, stating that policemen were all juntas and should be killed, opened fire at the hospital because several policemen were patients there.[588]

284. Civilians other than members of the police were also subjected to unlawful acts in Bo. When the Kamajors entered Bo, there was fear among the civilians. Many people had been killed. The situation reports of the Kamajors indicated excessive killing of civilians.[589] The Kamajors chased, captured and chopped at people with cutlasses. There was a lot of gunfire and many civilians fled, crying. Some civilians were killed and others suffered amputations.[590] An unidentified woman who had cooked for the rebels, and a man, John Musa who had traded for the rebels were killed.[591] The Kamajors attacked five persons with knives and hit Witness TF2-006 with a stick and amputated the fingers of his hand.[592] The Kamajors killed and mutilated a man accused of being a junta collaborator because he was a Limba.[593]

285. At a Kamajor checkpoint, two men and two women were forced to lay naked in the sun while the Kamajors stepped on their stomachs.[594] One of the women was shot and mutilated.[595] In Bo, John Hota was killed by the Death Squad which had received direct instructions from Norman to kill John Hota because “he had no place to keep prisoners of war.”[596] On 16 February 1998, the Kamajors tortured Witness TF2-198 and decapitated his brother.[597] On 22 February 1998, the Kamajors chopped and killed Witness TF2-030’s husband because he was a Temne, saying that they would weed all the Temne from Bo Town.[598] Six other people were hacked to death.[599] Around 22 February 1998, the Kamajors assaulted Witness TF2-156, killed his two brothers as well as two other men.[600] Other unlawful acts against civilians were committed by the Kamajors in Bo after the arrival of ECOMOG on 23 February 1998.[601]

286. After the capture of Bo, Norman held various meetings, in which he asked the people “not to blame the Kamajors” that he took the responsibility for their actions and that they should accept losses and deaths because these occurred in war.[602] He also complained to the Kamajors that they lied to him about the burnt down police barracks and policemen killed in Bo Town and that he felt deceived after having seen the barracks intact and the police at the parade.[603]

287. The Prosecution charged the Accused with murder as a crime against humanity for the unlawful killings of an unknown number of civilians along with captured enemy combatants between October 1997 and December 1999 in locations in Bonthe District including Talia (Base Zero), Mobayeh, Makose and Bonthe Town.[604] The Prosecution also charged the Accused with inhumane acts as a crime against humanity for intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilians, through acts of screening for collaborators, unlawfully killing suspected collaborators, often in plain view of friends and relatives, illegal arrest and unlawful imprisonment of collaborators, the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot, in Bonthe District between November 1997 and December 1999.[605]

288. The Trial Chamber found that the attack carried out by the Kamajors in Bonthe on 15 February 1998 constituted part of a “widespread attack,” within the meaning of crimes against humanity.[606]

289. The Trial Chamber found that on 15 September 1997, the Kamajors entered Bonthe with the aim of seizing a military gunboat but the attack did not succeed.[607] However, the soldiers left Bonthe on 14 February 1998, in a Sierra Leone Navy gunboat and the Kamajors entered Bonthe the following morning.[608]

290. On 15 February 1998 a fisherman named Kpana Manso was shot by the Kamajors for being the father of a soldier.[609] The same day, the Kamajors looted household items and equipment from the Bonthe Technical College, the Bonthe Holiday Complex, the government building, the Police station, the state prison, the district office, the elections office, the Ministry of Works and the Fisheries Department, the Post Office and the telecommunications department.[610] The same day, Lahai Ndokoi Koroma, accused of being a junta collaborator, was captured, stripped naked and tied.[611] Three delegations came from Base Zero to investigate the matter.[612]

291. On 16 February 1998, a young man was mutilated and shot and another fisherman was killed.[613] The same day, a house in Bonthe was looted and vandalized by the Kamajors.[614] At a meeting, the Commander Julius Squire announced that the Kamajors were looking for three collaborators.[615] He singled out Witness TF2-116, stating that he should be killed because he was a member of the Working Committee which had cooperated with the juntas.[616] At the same meeting, a boy named Bendeh Battiama, accused of being a collaborator, was shot.[617] The District Commander Morie Jusu said that no one else would be killed, but that the civilians had to pay 100,000 Leones for each of the 14 people that were at the meeting.[618] On 17 February 1998, Abu Conteh was killed because he was suspected to have prepared talismans and magical concoctions to protect the soldiers.[619]

292. On 23 February 1998, Norman came to Bonthe and said that “Any complaint against the Kamajors is useless as [sic] they had fought and saved the nation. Working with the Kamajors was like working with the cutlass [. . . ] It cuts you, you drop it, and you pick it up again.”[620] At a public meeting on 1 March 1998, Kondewa said that he had not authorised his men to enter Bonthe and apologised on their behalf.[621]

293. In March 1998 in Morumbo, the Kamajors mutilated Witness TF2-086 and killed her business partner.[622] In Gambia Village, Witness TF2-187’s uncle, who complained that the initiates uprooted his cassava, was tortured and killed.[623]

294. The Prosecution charged the Accused with murder as a crime against humanity for the unlawful killings of an unknown number of civilians along with captured enemy combatants on or about 15 February 1998, at or near the District Headquarter town of Kenema and at the nearby locations of SS Camp, and Blama and for the unlawful killings of Sierra Leone Police Officers on or about 15 February 1998, at or near Kenema;[624] and with inhumane acts as a crime against humanity for intentional infliction of serious bodily harm and serious physical suffering on an unknown number of civilians in Kenema Town, Blama and the surrounding areas between 1 November 1997 and 30 April 1998.[625]

295. The Trial Chamber found that the attack carried out by the Kamajors in Kenema between 15 and 18 of February 1998 constituted “part of a widespread attack,” within the meaning of crimes against humanity.[626]

296. The Trial Chamber found that, prior to February 1998, the AFRC was in control of Kenema. The SS Camp in Kenema District was very strategic. The Soldiers fled SS Camp when the Kamajors approached. When the Kamajors took the Camp, the rebels and soldiers attacked it but were unsuccessful in regaining the camp.[627] About one week later, on 11 February 1998, the rebels left Blama; the Kamajors arrived on 15 February 1998.[628] On that day, the Kamajors entered the police barracks in Blama. They threatened Witness TF2-041 saying that Norman had instructed that police should be killed. Thereafter Sergeant Fosana was killed.[629] The following day, the Kamajors separated all those who arrived in Blama into lines according to their tribe, saying that: “Temnes are all relatives of Sankoh” and that “Sankoh [. . . ] brought the war;” one Temne man ran from the line and he was caught and decapitated.[630] The Kamajors arrived in Kenema on 15 February 1998. Since the rebels had already left, they captured it easily.[631] On that day, the Kamajors killed two young men who were tenants in a house, although they protested not being part of the junta.[632] On the same day also, the Kamajors killed police officers at the Kenema police barracks and they shot Sergeant Mason, Corporal Fandai and Momoh Tawol.[633] Two other police officers, Sergeant Turay and SI Mimor were killed.[634] While crossing the police football field, OC Kano and Desmond Pratt were shot.[635] On 16 February 1998, the junta returned and attacked Kenema. There was heavy exchange of fire between Kamajors and rebels for several hours. Some of the firing against Kamajors came from the direction of the police barracks. Some policemen were among the rebels that were shooting at the Kamajors. Eventually, the rebels were pushed out of Kenema.[636] After driving out the rebels, Kamajors entered the Kenema Police Barracks. A group of three Kamajors searched the houses and killed some policemen that were hiding under their beds. At least one body was taken outside and burnt in the field.[637]

297. The Trial Chamber concluded, in respect of the third element for crimes against humanity, (i.e., an attack “directed against a civilian population”) that:

298. At the outset, the Appeals Chamber notes that the Trial Chamber’s conclusion in regard to the third element of crimes against humanity is devoid of articulation of its reasoning. While it is not always mandatory, the Appeals Chamber is of the view that, in the interest of justice, a Trial Chamber should endeavor to provide reasons for its conclusions.

299. The Appeals Chamber will now consider whether, based on the findings of the Trial Chamber in relation to the attacks on Tongo, Koribondo, Bo, Bonthe and Kenema, it was open to the Trial Chamber to conclude that the Prosecution failed to prove beyond reasonable doubt that the attacks were not “directed against the civilian population.” The Appeals Chamber approves the opinion of the Trial Chamber that the expression “directed against” a civilian population requires that “the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack.”[639] The Appeals Chamber emphasizes that what must be primary is the civilian population as a target and not the purpose or the objective of the attack.

300. The Trial Chamber found that “the evidence adduced does not prove beyond reasonable doubt that the civilian population was the primary object of the attack. By contrast, there is evidence that these attacks were directed against the rebels or juntas that controlled towns, villages, and communities throughout Sierra Leone.”[640] The Appeals Chamber is of the view that the Trial Chamber appears to have misdirected itself when applying the principle it had already stated, by confusing the target of the attack with the purpose of the attack. When the target of an attack is the civilian population, the purpose of that attack is immaterial.

301. During the second attack on Tongo, immediately after the military operation on the rebel checkpoint, the Kamajors “took control” of the civilians and killed civilians consisting of 151 Limbas, Lokos and Temnes. Most of the crimes committed on civilians during the third attack on Tongo on 14-15 January 1998 occurred after the rebels retreated.[641] Those crimes included a mass killing of a group of 65 civilians.[642]

302. The Appeals Chamber has examined the findings in regard to each of the locations earlier mentioned. There is no doubt from those findings that the Trial Chamber was satisfied beyond reasonable doubt that civilians were attacked in various ways by the Kamajors in several of these locations. It was on these findings that the Trial Chamber found that war crimes were proved beyond reasonable doubt.

303. The Appeals Chamber is of the opinion that having found as earlier stated, the Trial Chamber fell into error in not testing these findings against the actual situation in the various locations, before coming to a general conclusion that attacks directed against a civilian population had not been proved beyond reasonable doubt. Had it done so it would have found on the evidence that there were locations in which the rebels and junta had already withdrawn before the attack on the civilian population by the Kamajors occurred.

304. The Trial Judgment reveals that the attacks in Bo,[643] Bonthe[644] and Kenema[645] were launched and carried out after the departure of the rebels and juntas.

305. In this context, the Appeals Chamber notes the holding of the Trial Chamber in its Sentencing Judgment that:

“[I]nstead of limiting themselves and directing these attacks on legitimate military targets and objectives . . . the Accused Persons and their Kamajors . . . went beyond these acceptable military and legal limits and carried out killings and other atrocities against unarmed civilians who they characterised and designated as ‘rebel collaborators’. In fact, we note here that the crimes for which they have been found guilty were perpetrated by the Accused Persons and CDF/Kamajor fighters when combat activities and operations against the enemy AFRC forces were already over.[646]

306. In view of the absence of military operations between the Kamajors and the rebels/soldiers at the time of the commission of most of the crimes against the civilians, the Appeals Chamber rejects Fofana’s submission that those civilians were “collateral victims” of military operations,[647] and further opines that those civilians could not reasonably be considered as mere “incidental targets”[648] of a legitimate military attack. Rather, in the view of the Appeals Chamber, the context of the commission of the crimes, remote from military operations, supports a reasonable conclusion that the “attacks” were, in fact, specifically “directed against” a civilian population, within the meaning of Article 2 of the Statute.

307. In view of these findings of fact, taken as a whole, the Appeals Chamber is of the view that the criminal conduct against those civilians was neither random nor isolated acts but was rather perpetrated pursuant to a common pattern of targeting the civilian population.

308. In view of the foregoing, having regard to the factual findings of the Trial Chamber, the Appeals Chamber holds that the Trial Chamber erred in concluding that it had not been proved beyond reasonable doubt that the attacks were directed against a civilian population.

309. The Prosecution’s First Ground of Appeal is granted in this respect. Under this Ground of Appeal, the Prosecution requests the Appeals Chamber to enter corresponding convictions against Fofana and Kondewa under Counts 1 and 3 in respect of all acts for which they were found by the Trial Chamber to be guilty under Counts 2 and 4.[649] The Appeals Chamber will next consider whether the remaining legal requirements for crimes against humanity are satisfied in this case.

5. The Act Must be Part of the Widespread or Systematic Attack Against the Civilian Population

310. In regard to the fourth element the Prosecution submits that on the basis of the findings of the Trial Chamber and the evidence it accepted, the only conclusion open to any reasonable trier of fact is that the crimes that were committed were part of an attack against a civilian population.

311. Neither Fofana nor Kondewa contested this submission in their response briefs.

312. The Appeals Chamber agrees with the submission of the Prosecution and finds that the fourth element of crimes against humanity is proved.

6. The Perpetrators Knew or had Reason to Know That There was an Attack Against the Civilian Population and Their Acts Were Part of the “Attack”

314. In relation to the fifth element the Prosecution submits that the only conclusion available to a reasonable trier of fact is that the Accused knew or had reason to know that the act constituted part of a widespread or systematic attack directed against any civilian population.

315. However, in regard to this fifth element the Appeals Chamber is of the view that the knowledge required in order to find that crimes against humanity had been committed is that of the actual perpetrator.

316. For this reason, the Appeals Chamber will consider whether the actual perpetrators had such knowledge.

317. In relation to the attack on Tongo, Norman told the Kamajors that “there is no place to keep captured or war prisoners like the juntas, let alone their collaborators”[650] and that “all collaborators should forfeit their properties.”[651] In relation to the attack on Koribondo, Norman instructed the Kamajors not to “leave any house or any living thing there, except mosque, church, the barri and the school,”[652] and that “anyone left in Koribondo should be termed an enemy or a rebel and killed.”[653] He further said that the capture of Koribondo had failed “because the civilians had given their children to the juntas in marriage and thus, they were all ‘spies and collaborators’ [and], [t]herefore, . . . ‘anybody that was met there should be killed’ and nothing should be left ‘not even a farm’ or ‘[. . . ] a fowl.’”[654] In relation to the attack on Bo, Norman told the Kamajors to “kill enemy combatants and people who had connections with or supported the rebels and who were therefore worse than the combatants;” he referred to them as “collaborators.”[655] At several occasions, Norman also ordered the Kamajors to kill police officers.[656]

318. The above findings of the Trial Chamber demonstrate that the “all out offensive” military attacks against towns and villages occupied by the rebels and juntas encompassed also an element of targeting civilians perceived or alleged “collaborators.” In the view of the Appeals Chamber, it is without a reasonable doubt that this policy was pursued by the Kamajors, through killings of definite individuals in view of any perceived or alleged relationships with the rebels, the commission of mass-killings of groups of civilians, a recurrent targeting of police officers and indiscriminate shootings at civilians, the burning of their houses or looting of their properties.

319. The evidence accepted by the Trial Chamber shows that the actual perpetrators of the crimes knew that a widespread or systematic attack was planned to break any possible resistance or collaboration by the population. Orders had been given to do so and punishment for not obeying was made clear to the perpetrators as well.[657]

320. The Appeals Chamber states that the only conclusion is that the actual perpetrators had the requisite knowledge.

321. The Appeals Chamber holds that whenever the Trial Chamber has found Fofana and Kondewa individually criminally responsible for war crimes under Counts 2 and 4, it reasonably follows that the same responsibility attaches to them for crimes against humanity in the same locations.[658]

322. The Appeals Chamber, Justice King dissenting, sets aside the verdict of not guilty against Fofana and Kondewa by the Trial Chamber under Counts 1 and 3 and substitutes, therefore, a verdict of guilty on those Counts. The Appeals Chamber will consider and impose appropriate sentences in respect of those Counts as part of its Disposition of the Prosecution’s Tenth Ground of Appeal.

B. Prosecution’s Sixth Ground of Appeal: Fofana’s and Kondewa’s Acquittals for Acts of Terrorism

323. The Trial Chamber acquitted Fofana and Kondewa of the crime of acts of terrorism, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.d. of the Statute (Count 6).[659] It concluded that neither Fofana nor Kondewa were criminally responsible under Article 6(1) or Article 6(3) of the Statute for acts of terrorism because it was not proved beyond reasonable doubt that either possessed the requisite mens rea to establish criminal responsibility.[660]

324. In arriving at its conclusion, the Trial Chamber stated that it adopted a limited interpretation of Count 6[661] and that “only those acts for which the Accused have been found to bear criminal responsibility under another count of the Indictment may form the basis of criminal responsibility for acts of terrorism.”[662] It further found that it was not proved beyond reasonable doubt that the criminal acts committed by the Kamajors in Tongo, Koribondo and Bonthe District had the specific intent to spread terror[663] and found that whilst instructions given by Norman in advance of the attacks might have had the specific intent to spread terror, this was not the only reasonable inference that could be drawn from the evidence.[664]

325. In its Sixth Ground of Appeal, the Prosecution raises four distinct heads. These are that:

326. The Prosecution now requests the Appeals Chamber to reverse the Trial Chamber’s findings and find Fofana and Kondewa criminally responsible for the crime “acts of terrorism” charged under Count 6 of the Indictment.[669]

327. The Prosecution submits that the Trial Chamber’s limited interpretation of Count 6 amounts to an error of law because it adds a requirement not included in the elements of the crime “acts of terrorism.”[670] This is the requirement that responsibility for acts of terrorism may only be based on acts of violence, which themselves amount to other crimes under international criminal law.[671] This, the Prosecution submits, is erroneous because the actus reus of the crime of “acts of terrorism” need not involve an act that is otherwise criminal under international criminal law.[672]

328. The Prosecution claims that the Trial Chamber should have given independent consideration to all conduct pleaded in the Indictment notwithstanding whether such conduct was itself a crime and satisfied the elements of any other Count in the Indictment.[673] In support, it argues that the language in Count 6 of the Indictment: “including threats to kill, destroy and loot, as part of a campaign to terrorize the civilian populations”[674] makes it clear that the evidentiary basis relied on to establish the crime “acts of terrorism” included conduct that was not itself a crime.[675] The Prosecution submits that a correct reading of the Indictment and application of the law required the Trial Chamber to consider all conduct pleaded in relation to Counts 1-5 of the Indictment, including acts of burning notwithstanding the finding that acts of burning do not satisfy the elements of pillage.[676]

329. In response, Kondewa submits that the Trial Chamber’s statement that it adopted a limited interpretation of Count 6, did not have the effect of adding a requirement to the elements of the crime “acts of terrorism.”[677] Rather, the Trial Chamber’s statement merely indicated how it interpreted the Indictment.[678] He submits that the Trial Chamber’s interpretation of the Indictment is within its broad discretion and that there is nothing to indicate that the Trial Chamber in this instance abused its discretion.[679] Kondewa further claims that Count 6 was overly broad and disproportionate in its scope and that a failure to limit Count 6 would have resulted in prejudice against him because paragraph 28, containing the charges under Count 6 is vague and duplicitous.[680] He submits that the Trial Chamber was correct in not considering acts of burning because acts of burning do not satisfy the crime of pillage and is, therefore, precluded from being considered under Count 6.[681]

330. Fofana similarly submits that the Trial Chamber’s interpretation of Count 6 is correct. He argues that it is only by virtue of the alleged commission of crimes charged under Counts 1-5 that he is also charged with acts of terrorism.[682] Fofana employs the same argument as Kondewa in submitting that acts of burning should not have been considered by the Trial Chamber in its evaluation of Count 6.

331. The Prosecution argues that the Trial Chamber erred in law and fact in failing to find Fofana and Kondewa criminally responsible for acts of terrorism under Article 6(1) of the Statute for aiding and abetting “acts of terrorism” in the town of Tongo.[683] It submits that on the findings of the Trial Chamber and the evidence it accepted, the only conclusion open to any reasonable tribunal of fact is that first, the perpetrators of crimes committed in Tongo had the specific intent of terrorizing the population and second, that Fofana and Kondewa as aiders and abetters had the requisite knowledge of the specific intent to spread terror.[684]

332. In support of its argument, it claims that the Trial Chamber’s evaluation of the evidence exclusively relied on the instructions given by Norman at the December 1997 Passing Out Parade. It submits that the instructions given by Norman was but one of a number of factors that should have been considered by the Trial Chamber.[685]

333. The Prosecution further challenges the Trial Chamber’s finding that “while spreading terror may have been Norman’s primary purpose in issuing the order to kill captured enemy combatants and ‘collaborators,’ . . . this is not the only reasonable inference that can be drawn from the evidence.”[686] It argues that orders given by Norman demonstrate an intent to spread terror. Statements such as “any junta you capture, instead of wasting your bullet, chop of his left [hand] as an indelible mark [...] to be a signal,”[687] can only be reasonably interpreted as demonstrating the specific intent to spread terror amongst the civilian population.

334. The Prosecution lists several proven acts of violence committed in Tongo and argues that because of the “gruesomeness and cruelty of these acts, the fact that it targeted civilians according to their ethnicity, the modus operandi of the Kamajors, and the fact that the entrails of one victim were displayed in front of the remaining civilians”[688] no reasonable tribunal of fact could have concluded that these acts did not show the specific intent to spread terror.[689]

335. In submitting that both Fofana and Kondewa had knowledge of the physical perpetrators’ specific intent to spread terror, the Prosecution contends that first, the contents of the orders given by Norman indicate an intention to spread terror and second, that they had knowledge that civilians had in the past been terrorized by the CDF.[690]

336. In response, Fofana submits that knowledge of the specific intent to spread terror cannot be imputed to him from the orders given by Norman. He proffers alternative inferences that may be drawn from Norman’s comments and argues that at best, Norman’s comments contained an intent to commit criminal acts but that it “cannot be interpreted . . . in its meaning to transfer knowledge on Fofana of a specific intent of the Kamajors to spread terror.”[691]

337. Kondewa similarly submits that the “decision [by the Trial Chamber] to rely on the instruction at the Passing Out Parade was within [its] discretion” and that even if it is established that the specific intent of the perpetrators of acts of violence committed in Tongo was to spread terror, there is no evidence to suggest that he had the requisite knowledge that such was the case.[692]

338. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that the evidence adduced had not established beyond reasonable doubt that Fofana knew or had reasons to know that his subordinates would commit acts of terrorism in Koribondo or had already done so.[693] It argues that in arriving at its conclusion, the Trial Chamber relied exclusively on its finding that “the commission of such acts [of violence with the primary purpose to spread terror] was not explicitly included in Norman’s order.”[694] In so doing, the Prosecution contends that the Trial Chamber failed to consider circumstantial evidence and therefore misapplied the law with respect to the mens rea required to establish superior responsibility.[695]

339. Relying on similar arguments made in relation to crimes committed in Tongo, the Prosecution lists several proven acts of violence committed in Koribondo and argues that such acts of violence can only reasonably lead to the conclusion that the perpetrators had the specific intent to spread terror.[696] The Prosecution further submits that several of Norman’s instructions such as his statement in January 1998 in advance of the attack in Koribondo, that fighters not leave “any house, or any living thing there” and his instructions given to “Nallo in Fofana’s presence to kill anybody in Koribondo” can only be reasonably interpreted as demonstrating the specific intent to spread terror amongst the civilian population.[697] The Prosecution submits that, at the very least, Norman’s instructions placed Fofana on notice that acts of terrorism were about to be committed.[698] The Prosecution similarly relies on Fofana’s alleged prior knowledge that civilians had been in the past terrorized in Tongo and the Trial Chamber’s finding that there was a reporting system in place and that “Albert J Nallo did all the planning for the Koribondo attack and then submitted it to . . . Fofana.” [699]

340. In response, Fofana relies on similar arguments raised in relation to criminal responsibility for acts of terrorism alleged in Tongo and submits that there is no evidence demonstrating that he knew or had reason to know that his subordinates were perpetrating acts of violence with the specific intent to spread terror.[700] Fofana refutes the Prosecution’s submissions that Norman’s instructions demonstrated the specific intent to spread terror and argues that other inferences than the spreading of terror may be drawn from the evidence, such as the primary purpose of the Kamajors was “to capture or take towns that were under rebel or Junta control.”[701] Fofana submits that evidence as accepted by the Trial Chamber reveals that the reporting system and organisation of the CDF was poor[702] and that certain Kamajors acted on their own outside the knowledge of the CDF.[703]

341. He further argues that the Prosecution’s argument that he had prior knowledge of crimes committed by Kamajors is flawed because “knowledge that previous instances of violence cannot amount to proof of knowledge beyond reasonable doubt that acts of terrorism would be committed in the future.”[704]

(d) Responsibility of Kondewa as a Superior for Acts of Terrorism under Article 6(3) of the Statute in Bonthe District

342. The Prosecution submits that the Trial Chamber erred in law and in fact in finding that the evidence adduced had not established beyond reasonable doubt that Kondewa knew or had reason to know that his subordinates would commit acts of terrorism in Bonthe District or had already done so.[705] In support of its argument, the Prosecution similarly relies on Kondewa’s alleged knowledge that civilians had been in the past terrorized in Tongo and proven acts of violence committed in Bonthe District.[706] The Prosecution further relies on Kondewa’s admission that “he was aware of the atrocities committed by the Kamajors during the attack.”[707]

343. In response, Kondewa relies on similar arguments raised in relation to acts of terrorism alleged in Tongo and submits that there is no evidence demonstrating that he knew or had reason to know that his subordinates were perpetrating acts of violence with the specific intent to spread terror. He argues that the “link between the acts of the subordinates and his knowledge regarding the specific act of terrorism is unfounded.”[708]

344. Article 3.d. of the Statute, grants the Special Court jurisdiction to prosecute “acts of terrorism” in violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. Additional Protocol II contains two separate articles prohibiting acts of terrorism: Article 4(2)(d) and Article 13(2). Article 4(2)(d) contains a general prohibition of “acts of terrorism” and provides:

“Without prejudice to the generality of the foregoing, the following acts against . . . [persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted] are and shall remain prohibited at any time and in any place whatsoever: . . . (d) acts of terrorism.”

345. Article 3.d. of the Statute which borrows its language from Article 4(2)(d) of Additional Protocol II, therefore, prohibits acts of terrorism in its broad sense.

346. Additional Protocol II also contains a narrower offence prohibiting acts of terrorism. Article 13(2) provides:

“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

347. As the ICRC Commentary to Additional Protocol II makes clear, Article 13(2) of Additional Protocol II constitutes a “special type of terrorism:”

“It should be mentioned that acts or threats of violence which are aimed at terrorizing the civilian population, constitute a special type of terrorism and are the object of a specific prohibition in Article 13.” [709]

348. Article 13(2) is a narrower derivative of Article 4(2)(d). An offence under Article 13(2) of Additional Protocol II may be charged under Article 3.d. of the Statute. This is because acts of terrorism under Article 4(2)(d) inherently encompass the narrower elements of acts of terrorism prohibited under Article 13(2).

349. The Appeals Chamber notes that Count 6 of the Indictment does not specify which of the above provisions Fofana and Kondewa were charged under. The Appeals Chamber is of the view, however, that after considering the Prosecution’s Pre-Trial Brief, the Trial Judgment, and reliance placed upon the ICTY case of Prosecutor v. Galić by all parties to establish the elements of the crime, it is clear that the intention and understanding of all parties from the outset of the trial, was to interpret Count 6 as being a charge under Article 13(2) of Additional Protocol II.

350. The Appeals Chamber finds that the elements of the crime of acts of terrorism under Article 13(2) of Additional Protocol II are:

(ii) That the offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts or threats of violence; and

(iii) The acts or threats of violence were carried out with the specific intent of spreading terror among the civilian population.[710]

351. The actus reus of the crime, acts of terrorism, may be proved by acts or threats of violence. Acts or threats of violence may comprise not only of attacks but also threats of attacks against the civilian population. Consistent with the ICRC Commentary to Additional Protocol II, this “covers not only acts directed against people, but also acts directed against installations which would cause victims as a side-effect.”[711] Acts or threats of violence are also not limited to direct attacks against civilians or threats thereof but include indiscriminate or disproportionate attacks or threats.[712]

352. Acts of terrorism may, therefore, be established by acts or threats of violence independent of whether such acts or threats of violence satisfy the elements of any other criminal offence. Not every act or threat of violence, however, will be sufficient to satisfy the first element of the crime of “acts of terrorism.” The Appeals Chamber is of the view that whilst actual terrorisation of the civilian population is not an element of the crime,[713] the acts or threats of violence alleged must, nonetheless, be such that are at the very least capable of spreading terror. Whether any given act or threat of violence is capable of spreading terror is to be judged on a case-by-case basis within the particular context involved. For this purpose, the Appeals Chamber agrees with the Trial Chamber in Galić that “terror” should be understood as the causing of extreme fear.[714]

(ii) That the Offender Wilfully Made the Civilian Population or Individual Civilians not Taking Direct Part in Hostilities the Object of Those Acts or Threats of Violence

353. The second element of the crime “acts of terrorism” is that the offender “wilfully” made the civilian population or individual civilians the object of an act or threat of violence.

354. The Appeals Chamber notes that Article 85 of Additional Protocol I and its corresponding commentary[715] define the term “wilfully,” in relation to the distinct prohibition of making the civilian population or individual civilians the object of attack. The Appeals Chamber finds, however, that there is no reason why the definition of the term “wilfully”[716] as discussed in relation to Article 85 of Additional Protocol I should not apply to the crime “acts of terrorism.”

355. It follows, that for the crime “acts of terrorism” the second element (“wilfully made the civilian population or individual civilians, the object of an act or threat of violence”) requires the Prosecution to prove that an accused acted consciously and with intent or recklessness in making the civilian population or individual civilians the object of an act or threat of violence. Negligence, on the other hand, is not enough. [717]

356. The third element of the crime of “acts of terrorism” is the specific intent to spread terror amongst the civilian population. The Prosecution is required to prove not only that the perpetrators of acts of threats of violence accepted the likelihood that terror would result from their illegal acts or threats, but must prove that that was the result which was specifically intended.[718] The spreading of extreme fear must, therefore, be specifically intended.

357. The specific intent to spread terror need not be the only purpose of the unlawful acts or threats of violence. It is well established that “[t]he fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge.”[719] The existence of a coexisting purpose does not, however, detract from the requirement that what must be proved irrespective of any other coexisting purpose, is the specific intent to spread terror. Whether the specific intent to spread terror is satisfied is determined on a case-by-case basis and may be inferred from the circumstances, the nature of the acts or threats and the manner, timing or duration of acts or threats of violence.[720]

358. The Appeals Chamber will now discuss the four heads of the Prosecution’s Sixth Ground of Appeal.

359. In light of the elements of the offence set out above, the crime “acts of terrorism” may be proved by any act or threat of violence capable of spreading extreme fear amongst the civilian population. The Appeals Chamber, therefore, agrees with the Prosecution that acts of terrorism need not involve acts that are otherwise criminal under international criminal law. The Appeals Chamber further agrees that acts of burning are acts or threats that are potentially capable of spreading terror, notwithstanding the finding that acts of burning do not satisfy the elements of pillage.

360. Whether the Trial Chamber erred in failing to consider conduct not amounting to a crime (acts of burning in this instance), however, raises a separate question that relates to the pleading of the Indictment.

361. Paragraph 28 of the Indictment, charging acts of terrorism under Count 6, states:

“At all times relevant to the Indictment, the CDF, largely Kamajors, committed the crimes set forth in paragraphs 22 through 27 and charged in counts 1 through 5, including threats to kill, destroy and loot, as part of a campaign to terrorize the civilian populations of those areas and did terrorize those populations. The CDF, largely Kamajors, also committed the crimes to punish the civilian population for their support to, or failure to actively resist, the combined RUF/AFRC forces.”

362. The Appeals Chamber finds that the Trial Chamber’s statement that it adopted a limited interpretation of Count 6 amounts to a finding that Count 6 of the Indictment was defective to the extent that the Trial Chamber excluded ‘threats to kill, destroy and loot’ proved under Counts 1-5 in its evaluation of Count 6.

363. In considering whether the Trial Chamber’s limited interpretation of Count 6 amounts to an error of law, the Appeals Chamber recalls that the principal function of an Indictment is to provide for a fair trial and to maintain the integrity of proceedings by notifying an accused of the nature and cause of the charge against him.[721] This imposes an obligation on the part of the Prosecution to state the material facts underpinning the charges in an indictment, but does not extend to pleading the evidence by which such material facts are to be proved.[722] An Indictment which fails to notify an accused of the nature and cause of the charge against him may, however, in certain circumstances be cured by timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.[723]

364. The Appeals Chamber finds that paragraph 28 of the Indictment is clear in establishing that the material facts supporting criminal responsibility under Count 6 are the material facts pleaded in relation to Counts 1 to 5 of the Indictment. These include “threats to kill, destroy and loot.” The Trial Chamber, therefore, erred in stating it would only consider crimes “charged and found to have been committed under Counts 1-5 in the Indictment.”[724] The Trial Chamber should have considered all conduct that was adequately pleaded in the Indictment irrespective of whether such conduct satisfied the elements of any other crimes under Counts 1-5.

365. Whether the Trial Chamber’s error invalidates the decision is discussed below as it is dependent on whether the Trial Chamber erred in its determination of the mens rea requirement for acts of terrorism. In particular, Fofana’s and Kondewa’s liability for acts of terrorism under Article 6(1) and Article 6(3) of the Statute depends on whether they had the requisite mens rea for liability as aiders and abetters or superiors. Accordingly, the Appeals Chamber will examine whether a reasonable tribunal of fact could have found, as the Trial Chamber did, that neither Fofana nor Kondewa had the requisite mens rea.

(b) Fofana’s and Kondewa’s Responsibility for Aiding and Abetting Acts of Terrorism in Tongo

366. The Appeals Chamber has previously endorsed the following statement of the mens rea for aiding and abetting:

“The mens rea required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. However, it is not necessary that the aider and abettor had knowledge of the precise crime that was intended and which was actually committed, as long as he was aware that one of a number of crimes would probably be committed, including the one actually committed.”[725]

367. The person aiding and abetting a specific intent crime need not possess the principal’s intent to commit the crime, but must at least have knowledge of the principal’s specific intent.[726]

368. In regard to the acts of terrorism committed in Tongo, the Appeals Chamber is not persuaded by the Prosecution’s submission that no reasonable tribunal of fact could have found that Fofana and Kondewa may not have been aware of the specific intent to commit acts of terrorism in Tongo. The Prosecution argues that the Trial Chamber’s error resulted from its “exclusive reliance on the instruction given by Norman at the December 1997 Passing Out Parade to determine whether the perpetrators of the proven acts of violence had the specific intent to terrorise the civilian population.”[727] Contrary to the Prosecution’s assertion, the Trial Chamber used evidence of Norman’s statements at the December 1997 Passing Out Parade to determine whether Fofana and Kondewa were aware of his specific intent to spread terror. While the instructions given by Norman are inherently illegal, they are ambiguous with respect to his intent to spread terror, and therefore a reasonable tribunal of fact could have determined that Fofana and Kondewa were not aware of the specific intent with respect to any acts of terrorism in Tongo.

369. The Prosecution further argued that Fofana must have known of the specific intent to commit acts of terrorism because he was aware “that the Kamajors who operated in the towns of Tongo Field had previously engaged in criminal conduct.”[728] A similar argument was advanced in relation to Kondewa.[729] However, the Prosecution makes no submission as to how knowledge of past general intent crimes would provide Fofana or Kondewa with knowledge of the principal’s specific intent to spread terror.

370. The Prosecution’s argument with respect to Fofana’s and Kondewa’s liability for aiding and abetting acts of terrorism in Tongo must be rejected.

371. To be held responsible as a superior for acts of terrorism in Koribondo, Fofana must have known or had reason to know that acts of terrorism were about to be committed or were committed by his subordinates with the specific intent to spread terror.[730]

372. The Prosecution relies on four principal arguments to establish that Fofana knew or had reason to know that acts of terrorism were committed in Koribondo. These are:

373. Although acts of terrorism may have been committed in Koribondo, the Prosecution does not demonstrate that Fofana knew or had reason to know that acts of terrorism would be or were committed there. The Prosecution only points to one finding of fact to suggest that Fofana may have learned, after the fact, that acts of terrorism were committed in Koribondo, however even this finding is far from conclusive. The Prosecution submits that the Trial Chamber found that “Fofana received reports on any military operation, in particular when Nallo was involved.”[734] In fact, in the relevant paragraphs, the Trial Chamber found that Fofana “received frontline reports, both written and verbal, from the commanders in the field and passed them on to Norman” and that the strategies for war operations planned by Nallo and Fofana “did not include the killing of innocent civilians, looting of property or raping of women.”[735] Neither of these findings points ineluctably to the conclusion that Fofana knew or had reason to know that acts of terrorism were committed in Koribondo.

374. The real strength of the Prosecution’s argument that Fofana must have known or had reason to know that acts of terrorism would be committed in Koribondo lies in his knowledge of Norman’s orders, but even there the argument must fail. Although Norman’s statement at the December 1997 Passing Out Parade contained illegal orders, it did not unambiguously indicate a specific intent to spread terror. In light of this ambiguity, a reasonable tribunal of fact could find that Fofana neither knew nor could have known of the specific intent.

375. The Prosecution’s argument with respect to Fofana’s superior responsibility for acts of terrorism in Koribondo must be rejected.

(d) Kondewa’s Superior Responsibility Under Article 6(3) of the Statute for Acts of Terrorism in Bonthe District

376. The Appeals Chamber is not convinced by the Prosecution’s submissions that the Trial Chamber erred in not finding that Kondewa knew or had reasons to know that acts of terrorism were about to be or had been committed in Bonthe District. A reasonable tribunal of fact could conclude, as did the Trial Chamber, that instructions given by Norman during the Passing Out Parades in December 1997 and in early January 1998 did not convey the specific intent to spread terror.

377. The additional submissions by the Prosecution also do not render the Trial Chamber’s conclusion on Kondewa’s lack of mens rea unreasonable. As discussed above, and contrary to the Prosecution’s submission, the Trial Chamber reasonably concluded that Kondewa was not aware that civilians had been terrorized in Tongo, although it found that he was aware that the Kamajors who operated in the towns of Tongo Field had committed crimes.[736] Further, Kondewa’s admission that “he was aware of the atrocities committed by the Kamajors during the attack” on Bonthe[737] does not necessarily demonstrate that he was aware that his subordinates committed acts of terrorism. A reasonable tribunal of fact could have concluded that he had the requisite knowledge that some crimes had been committed in Bonthe, but lacked knowledge of the crime “acts of terrorism.”

378. The Prosecution’s argument with respect to Kondewa’s superior responsibility for acts of terrorism in Bonthe must be rejected.

379. The Appeals Chamber, therefore, finds no reason to disturb the Trial Chamber’s findings with respect to the criminal responsibility of Fofana and Kondewa for acts of terrorism under Article 6(1) and/or Article 6(3) of the Statute. The Appeals Chamber rejects the Prosecution’s Sixth Ground of Appeal in its entirety.

380. The Prosecution submits that the Trial Chamber erred in law by finding that “an essential element of pillage is the unlawful appropriation of property” and that “the destruction by burning of property does not constitute pillage.”[738]

381. Count 5 of the Indictment charged Fofana and Kondewa with “looting and burning” as pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute.[739] The Trial Chamber found that numerous acts of burning occurred as alleged in the Indictment. However, the Trial Chamber found as a matter of law that “an essential element of pillage is the unlawful appropriation of property.”[740] The Trial Chamber, therefore, held that it would not take into account acts of burning for the purposes of determining the individual criminal responsibility of Fofana and Kondewa under Count 5.[741]

382. The Prosecution argues that the Trial Chamber erred in law in failing to consider that destruction by burning could amount to pillage.[742] The Prosecution’s argument is based on four lines of reasoning. First, the Prosecution argues that the meaning of pillage in English and French supports the inclusion of burning as destruction as a form of pillage.[743] The Prosecution uses the Oxford English Dictionary to draw linguistic connections between “pillage” and “destroy,”[744] and further submits that the Trial Chamber erred in relying on Black’s Law Dictionary instead of referring to “reliable judicial or statutory authority in the relevant field of the law.”[745] Fofana responds that unlike Black’s Law Dictionary, the Oxford English Dictionary and the Oxford Thesaurus are not concerned with legal definitions.[746]

383. Second, the Prosecution submits that the military manuals of at least three States (the United Kingdom, Canada and Australia) recognize that pillage includes destruction of property.[747] Without elaboration, Fofana responds that these military manuals express a “military viewpoint”[748] and have “little or no legal value.”[749]

384. Third, the Prosecution points to the Pohl Case at Nuremberg in which the US Military Tribunal described the destruction of the Warsaw Ghetto as “the most complete task of destruction of a modern city since Carthage . . . It was the deliberate and intentional destruction of a large modern city and its entire civilian population. It was wholesale murder, pillage, thievery, and looting . . . ”[750] According to the Prosecution, the Tribunal’s use of pillage refers to the destruction of property since “thievery and looting” describe acts of appropriation of property and no other term would accomplish the Tribunal’s intention to describe “the most complete task of destruction” and the “deliberate and intentional destruction of a large modern city.”[751]

385. Fourth, the Prosecution argues that customary international law prohibits the destruction of the property of an adversary unless required by military necessity, and the prohibition against pillage is the only provision against the destruction of property contained in the fundamental guarantees provided in Article 4 of Additional Protocol II.[752] According to the Prosecution, if the prohibition against pillage in Article 4 of Additional Protocol II does not include a prohibition against the destruction of property, then an “inexplicable lacuna” exists in the law.[753] The Prosecution submits that the inclusion in the Statute of the Special Court of offences of wanton destruction of property under the Malicious Damage Act of 1861 does not resolve the “broader question as to whether wanton destruction of property is a conduct reasonably coming within the general prohibitory province of common Article 3 to the Geneva Conventions or of Additional Protocol II.”[754]

386. Fofana submits that the existence of a lacuna in Additional Protocol II with respect to the destruction of property in non-international armed conflict is precisely the reason the Statute provides jurisdiction pursuant to domestic law for such crimes.[755] Apparently arguing in the alternative, Fofana submits that Additional Protocol II contains a protection against wanton destruction of civilian property in the general protections under Article 13(1).[756] Therefore, “pillage” need not be expansively interpreted to provide such protection.[757] Fofana also argues that under the maxim of construction expressio unius exclusio alterius, the Statute’s inclusion of arson under Sierra Leonean law demonstrates its exclusion from the other jurisdictional provisions.[758]

387. Kondewa cites the Report of the Secretary-General on the Establishment of the Special Court for Sierra Leone in support of his argument that the inclusion of Sierra Leonean law in the Statute was intended “to take care of ‘cases where a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law.’”[759] Kondewa agrees with the Prosecution that if pillage does not include unlawful destruction of property then no “obvious” prohibition exists in the Geneva Conventions or Additional Protocol II for such acts committed in non-international armed conflict.[760]

388. Further, Fofana and Kondewa submit that ICTY jurisprudence demonstrates that pillage, plunder, looting and spoliation are used synonymously to describe unlawful appropriation during armed conflict.[761] Fofana notes that the ICTY Appeals Chamber considers the actus reus of pillage to include unlawful appropriation of property[762] and the mens rea of pillage to be satisfied where an accused intended to appropriate the property by depriving the owner of it.[763] Kondewa also notes that the definition of pillaging in the Rome Statute of the International Criminal Court includes “appropriation of property” as an element of the crime.[764]

389. The Appeals Chamber notes that the relevant question in this ground of appeal is whether the crime of pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute[765] can, as a matter of law, include acts of burning. For the purpose of this discussion, the Appeals Chamber considers the acts of burning relevant to this case to be acts of destruction not justified by military necessity. Therefore, the question here is whether the prohibition against pillage in common Article 3 and Additional Protocol II and as reflected in customary international law can include a prohibition against destruction not justified by military necessity.

390. The prohibition against pillage and the prohibition against destruction not justified by military necessity are long-standing rules in international humanitarian law. Both prohibitions exist in customary international law applicable to non-international armed conflict at the times relevant to this case.[766] However, they have been more substantially elaborated upon in the conventional international law applicable to international armed conflict and occupied territories, specifically.

391. An analysis of conventional international law and State practice indicates that the prohibition against pillage and the prohibition against destruction not justified by military necessity have been maintained as separate prohibitions. For example, the Lieber Code of 1863 qualifies the prohibition against “destruction of property” as conduct “not commanded by the authorized officer” whereas the prohibition against “pillage and sacking” is absolute.[767] The distinction is more pronounced in the contemporaneous Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, which provided for protections against pillage and destruction or seizure in separate articles.[768] Similarly, Article 32 of the Laws of War on Land, Oxford, 9 September 1880, separately forbids combatants “(a) To pillage, even towns taken by assault; [and] (b) To destroy public or private property, if this destruction is not demanded by an imperative necessity of war . . . .”

392. The 1907 Hague Regulations[769] and 1949 Geneva Conventions similarly provide separate prohibitions against pillage and destruction not justified by military necessity. Article 28 of the Hague Regulations of 1907 prohibits “pillage of a town or place, even when taken by assault” and Article 47 provides that “pillage is formally prohibited.” Article 23(g) forbids a State “[t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”[770]

393. Geneva Convention IV provides that “[p]illage is prohibited” in Article 33, paragraph 2 and that “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” are grave breaches in Article 147.[771] Geneva Convention IV, Article 53 states:

“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

394. Additional Protocol II expressly prohibits pillage whereas there are no provisions explicitly prohibiting destruction not justified by military necessity or unlawful attack on civilian property.

395. Article 13, paragraph 1, of Additional Protocol II states that the civilian population and individual civilians enjoy general protection against the dangers arising from military operations. The ICRC Commentary on Article 13 states that securing general protection of the civilian population in conformity with this Article is “based on the general principles relating to the protection of the civilian population which apply irrespective of whether the conflict is an international or an internal one.”[772] In particular, the principles of distinction and proportionality indicate that attacks against dwellings, schools and other buildings occupied by civilians are prohibited unless the buildings have become legitimate military objectives.[773]

396. Although the prohibition against pillage and the prohibition against destruction of property not justified by military necessity are distinct in the principal conventional international law instruments, an examination of relevant ICRC Commentaries on the Geneva Conventions and the additional protocols to the Geneva Conventions suggests that the prohibitions are related. According to the ICRC Commentary, the prohibition against pillage in Article 4(2)(g) of the Additional Protocol II:

“is based on Article 33, paragraph 2 of [Geneva Convention IV]. It covers both organized pillage and pillage resulting from isolated acts of indiscipline. It is prohibited to issue order whereby pillage is authorized. The prohibition has a general tenor and applies to all categories of property, both State-owned and private.”[774]

397. The ICRC Commentary on Article 33, paragraph 2 of Geneva Convention IV states:

“The purpose of this Convention is to protect human beings, but it also contains certain provisions concerning property, designed to spare people the suffering resulting from the destruction of their real and personal property (houses, deeds, bonds, etc., furniture, clothing, provisions, tools, etc.).

This prohibition is an old principle of international law, already stated in the Hague Regulations in two provisions: Article 28, which says: ‘The pillage of a town or place, even when taken by assault, is prohibited’, and Article 47, which reads: ‘Pillage is formally forbidden’. The Geneva Convention of 1949 omitted the Word ‘formally’ in order not to risk reducing, through a comparison of the texts, the scope of other provisions which embody prohibitions, and which, while they contain no adverb, are nevertheless just as absolute in character. This prohibition is general in scope. It concerns not only pillage through individual acts without the consent of the military authorities, but also organized pillage, the effects of which are recounted in the histories of former wars, when the booty allocated to each soldier was considered as part of his pay. Paragraph 2 of Article 33 is extremely concise and clear; it leaves no loophole. The High Contracting Parties prohibit the ordering as well as the authorization of pillage. They pledge themselves furthermore to prevent or, if it has commenced, to stop individual pillage. Consequently, they must take all the necessary legislative steps. The prohibition of pillage is applicable to the territory of a Party to the conflict as well as to occupied territories. It guarantees all types of property, whether they belong to private persons or to communities or the State. On the other hand, it leaves intact the right of requisition or seizure.”[775]

398. Thus, this commentary notably suggests that the Geneva Convention IV is “designed to spare people the suffering resulting from the destruction of their real and personal property”[776] and appears to relate the prohibition against pillage to that objective.

399. Nonetheless, the absolute prohibition against pillage distinguishes it from the prohibition against destruction or seizure of civilian property, as the latter allows for such conduct in conditions of military necessity. This distinction has the consequence that an express absolute prohibition against pillage logically does not implicitly include the qualified prohibition against destruction of property.

400. The preceding discussion demonstrates that the prohibitions against pillage and wanton destruction have been considered distinct in the conventional law prior to time relevant to this case. The Appeals Chamber notes that the interpretation of pillage at other international courts and State practice also demonstrate that pillage relates specifically to unlawful appropriation and therefore could not include acts of destruction.

401. The ICTY’s interpretation and application of the prohibitions against pillage and wanton destruction is consistent with the distinction between the two crimes. Only one case at the ad hoc tribunals listed acts of destruction as pillage,[777] and there it was said obiter dicta and has not been followed in any subsequent cases.[778] The ICTY Appeals Chamber in Kordić and Čerkez defined the “crime of plunder” as:

“all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international criminal law, including those acts traditionally described as ‘pillage’.”[779]

402. ICTY chambers consider the terms “pillage,” “plunder” and “spoliation” to describe the unlawful appropriation of public and private property during armed conflicts,[780] and that “plunder” should be understood as encompassing acts traditionally described as “pillage.”[781]

403. The Preparatory Commission for the International Criminal Court defined the elements of the “war crime of pillage” as including the requirement that the “perpetrator appropriated certain property,” “for private or personal use,”[782] “without the consent of the owner.”[783] International tribunals give consideration to the work done in producing the Rome Statute on the establishment of an international criminal court, and, specifically, the finalized draft text of the elements of crimes completed by the Preparatory Commission for the International Criminal Court in July 2000.[784] Although that document post-dates the acts involved here, it is nonetheless helpful in assessing the state of customary international law. In this regard, it should be noted that all the States attending the conference, whether signatories of the Rome Statute or not, were eligible to be represented on the Preparatory Commission. From this perspective, the document is a useful indication of the opinio juris of States.

404. The ICRC compendium on Customary International Humanitarian Law, published in 2005, surveyed State practice and concluded that pillage is the “specific application of the general principle of law prohibiting theft” thereby involving the “appropriation” of property “for private or personal use.”[785]

405. The Prosecution’s argument that Australia, Canada and the United Kingdom consider pillage to include the destruction of property is unavailing. The Prosecution appears to suggest that these three military manuals demonstrate State practice and therefore are indicative of the rule in customary international law. In determining customary international law with reference to State practice, the International Court of Justice in the North Sea Continental Shelf cases stated that the “State practice ... [should be] both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”[786] Here, no such uniform practice is indicated by an isolated examination of the military manuals of three States. Notably, the Prosecution provides no submissions regarding the practice of the remaining States.

406. Further, the “practice” evidenced by the military manuals of Australia, Canada and the United Kingdom is not uniform. While Australia’s Defence Force Manual appears to consider that “[p]illage is the seizure or destruction of enemy private or public property . . . for private purposes,” Australia’s Commanders’ guide appears to define pillage as “the violent acquisition of property for private purposes.”[787] A similar apparent disagreement exists in the Canada’s military manuals.[788] Further, the United Kingdom military manual relates pillage to theft.[789] Moreover, the military manuals of Australia, Canada and the United Kingdom each provide separate prohibitions against wanton destruction and pillage, indicating that those States do not consider the prohibition against pillage to encompass the prohibition against destruction.

407. Finally, evidence that the prohibition against pillage does not include the prohibition against destruction or seizure of property can be found in the drafting history of the Statute of the Special Court. Article 3 of the Statute provides jurisdiction over serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, including “pillage.” According to the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, the drafters had recourse to Sierra Leonean law:

“in cases where a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law. The crimes considered to be relevant for this purpose and included in the Statute are: offences relating to . . . wanton destruction of property, and in particular arson, under the 1861 Malicious Damage Act.”[790]

408. If pillage included wanton destruction, there would have been no reason to include the provision of the 1861 Malicious Damage Act.

409. Taking into consideration the definition of pillage applied by the ICTY and ICTR which logically excludes acts of destruction, the distinction between the prohibitions against pillage and destruction not justified by military necessity, which is preserved throughout applicable conventional international law and the drafting history of the Statute of the Special Court, the Appeals Chamber finds that a necessary element of the crime of pillage is the unlawful appropriation of property. Consequently, burning and other acts of destruction of property not amounting to appropriation as a matter of law, cannot constitute pillage under international criminal law. This Ground of Appeal therefore fails.

D. Prosecution’s Eighth Ground of Appeal: Denial of Leave To Amend the Indictment in Order To Charge Sexual Crimes

410. Under its Eighth Ground of Appeal, the Prosecution alleges that the Trial Chamber erred in law, in fact and in procedure in dismissing, by Decision of 20 May 2004, the Prosecution’s motion for leave to amend the Indictment to include charges of sexual violence.[791] The relief sought by the Prosecution is limited to a reversal by the Appeals Chamber of the legal reasoning employed by the Trial Chamber to arrive at the erroneous decision and a declaration to that effect. The Prosecution does not request the Appeals Chamber to substitute any additional conviction or to order any further trial proceedings.[792]

411. On 9 February 2004, the Prosecution filed a Motion before the Trial Chamber[793] seeking leave to amend the Indictment against Norman, Fofana and Kondewa to add four new counts of gender-based crimes, namely: rape, as a crime against humanity under Article 2.g. of the Statute (Count 9); sexual slavery and any other forms of sexual violence as crimes against humanity under Article 2.g. of the Statute (Count 10); other inhumane acts, as a crime against humanity under Article 2.i. of the Statute (Count 11); and outrages upon personal dignity as a war crime under Article 3.e. of the Statute (Count 12).

412. On 20 May 2004, the Trial Chamber issued a decision by majority, Justice Boutet dissenting, denying the Prosecution’s motion (“Indictment Amendment Decision”), on the ground that granting the amendment would have prejudiced the Accused and violated their right to be tried without undue delay and would constitute an abuse of process.[794]

413. On 4 June 2004, the Prosecution sought leave to appeal against the Indictment Amendment Decision due to “exceptional circumstances” and to avoid irreparable prejudice pursuant to Rule 73(B) of the Rules. On 2 August 2004, a majority of the Trial Chamber, Justice Boutet dissenting, refused the Prosecution’s application (“Trial Chamber’s Decision on Leave to Appeal”).[795]

414. On 30 August 2004, the Prosecution filed an appeal against the Trial Chamber’s Decision on Leave to Appeal. On 17 January 2005, the Appeals Chamber ruled that it had no jurisdiction to entertain the Prosecution’s appeal without leave of the Trial Chamber, and it therefore did not consider the merits of the Indictment Amendment Decision (“Appeals Chamber’s Decision on Leave to Appeal”).[796]

415. Under Ground Eight, the Prosecution requests that the Appeals Chamber find that the Trial Chamber committed an error of law, of fact, and/or a procedural error in denying its request in the Indictment Amendment Decision. The Prosecution contends that the alleged errors have invalidated the Trial Judgment and/or occasioned a miscarriage of justice, within the meaning of Article 20(1) of the Statute, so as to prevent any consideration in the Judgment of gender-based crimes. The Prosecution does not seek the remittal of the case to the Trial Chamber for consideration of additional counts on gender crimes, should the Appeals Chamber uphold the Prosecution’s request in this ground.

416. Kondewa responds that the Appeals Chamber lacks jurisdiction to entertain this ground of appeal. First, he submits that the Rules do not allow for interlocutory appeals to be brought at this stage of the proceedings.[797] He relies on the Appeals Chamber’s Decision on Leave to Appeal which held that the Appeals Chamber had no jurisdiction to entertain the Prosecution’s appeal against the Trial Chamber’s Decision on Leave to Appeal.[798] Second, Kondewa contends that the principle of res judicata bars the Appeals Chamber from dealing with the issue.[799] He avers that the matter has already been adjudicated in the Appeals Chamber’s Decision on Leave to Appeal.[800] Third, Kondewa asserts that this Ground of Appeal falls outside the scope of Article 20(1) of the Statute. He argues that “[t]o bring a ground of appeal within the purview of Article 20(1)(b) there must be an error of law which renders the decision invalid, i.e., . . . errors on a point of law which, if proven, affect the guilty verdict.”[801] Kondewa contends that the Prosecution has not demonstrated that the Indictment Decision affected the verdict in this case or rendered any part of the Trial Judgment invalid.[802] He further argues that the Prosecution has failed to demonstrate “an error of fact . . . [that] invalidates the decision in the judgment or occasions a miscarriage of justice,”[803] within the meaning of Article 20(1)(c).

417. Kondewa’s submissions with regard to the scope and effect of the Appeals Chamber’s Decision on Leave to Appeal are misguided. The Appeals Chamber did not hold that, as a general rule, it cannot hear appeals against interlocutory decisions when a Trial Chamber denies a party leave to appeal. Instead, the Appeals Chamber held that it lacked jurisdiction to hear interlocutory appeals, within the meaning and purpose of Rule 73(B),[804] when leave to appeal was denied. The Appeals Chamber held that it is precluded from hearing an interlocutory appeal under Rule 73(B) unless leave is granted. However, it did not hold that it is precluded from entertaining the issue if raised in an appeal on the merits at the post-judgment stage.

418. The legal effect of a Trial Chamber’s decision not to grant leave to appeal is confined to the interlocutory stage and does not concern the Appeals Chamber’s competence to examine the issue if raised at the post-judgment stage. Indeed, the Appeals Chamber explicitly affirmed that its lack of jurisdiction over appeals against interlocutory decisions where leave to appeal has been denied pertains exclusively to appeals lodged “in the course of the trial.”[805]

419. The Appeals Chamber considers that this holding is equally applicable at the Special Court and therefore rejects Kondewa’s submission in this regard.

420. Kondewa submits that the principle of res judicata bars the Appeals Chamber from entertaining the Prosecution’s Eighth Ground of Appeal, in view of the Appeals Chamber’s Decision on Leave to Appeal which already adjudicated the issue.[806]

421. As Kondewa submitted, lack of jurisdiction due to the principle of res judicata arises when the subject matter in dispute is the same, it came before a court of competent jurisdiction, which rendered a decision that binds every other court.[807] Had the Appeals Chamber dealt with the merit of the applicant’s submission, it would have been prevented by the principle of res judicata from reconsidering the issue on post-judgment appeal, unless it decided to reconsider its previous decision.[808] In this case, however, the Appeals Chamber declined to adjudicate the issue for want of jurisdiction. As a result, it refrained from examining the merit of the Prosecution’s submission, that is, whether the Trial Chamber erred in denying the Prosecution leave to amend the Indictment in order to charge sexual violence. The principle of res judicata, therefore is not applicable. Kondewa’s contentions therefore are misplaced and the Appeals Chamber rejects Kondewa’s submission in this respect.

422. Kondewa submits that the Prosecution failed to identify a procedural error, an error of law or an error of fact arising from the Indictment Amendment Decision that invalidates the Trial Chamber’s finding in its Judgment or occasions a miscarriage of justice. Appellate proceedings at the Special Court are governed by Article 20 of the Statute[809] and Rule 106 of the Rules.[810] According to these provisions, the Appeals Chamber may hear appeals on the grounds of: (a) a procedural error; (b) an error on a question of law invalidating the decision; and (c) an error of fact which has occasioned a miscarriage of justice.

423. In order for the Appeals Chamber to hear an error of law, such error must have invalidated the decision. The Prosecution argues that the Indictment Amendment Decision was based on an error of law which rendered this interlocutory decision “invalid,” and consequently invalidated “the final judgment to the extent that it contains no verdict on certain charges that would have been pronounced upon had there been no error in [the] interlocutory decision.”[811]

424. Appeals against interlocutory decisions issued by the Trial Chamber may, as a matter of law, be challenged at the post-judgment appeal stage. Nonetheless, it is incumbent upon the Appellant to show that the alleged error(s) contained in the impugned decision invalidates the verdict. The Appeals Chamber may decide without further reasoning not to examine an alleged error of law raised on appeal which, even if upheld, has no chance to affect the verdict.[812] Similarly, submissions of a party on error of fact which does not lead to a miscarriage of justice and does not have the potential to cause the impugned judgment to be reversed or revised may be dismissed and need not to be considered on the merits.[813]

425. In the instant case, the Prosecution merely requests the Appeals Chamber to declare that the Indictment Amendment Decision contains an error of law and or of fact. The Prosecution notes that, “[i]f the present Ground of Appeal is upheld, in order for any verdict to be reached on the individual responsibility of the Accused for the additional counts of gender crimes, the Appeals Chamber would . . . have to remit the case to the Trial Chamber for further trial proceedings on those counts.”[814] The Prosecution “accepts that this would not be practicable,” and therefore, does not seek any other remedy than a finding that the Trial Chamber erred in the impugned decision.[815]

426. In view of the scope of the Prosecution’s request and its failure to seek any remedy other than a mere finding of an error of law in the Indictment Amendment Decision, coupled with the fact that the alleged errors under this ground of appeal do not relate to Counts contained in the Indictment upon which the verdict was made, the Appeals Chamber finds that the Prosecution has not shown that the error of law would invalidate the decision or that an error of fact would lead to a miscarriage of justice. The findings in the Trial Judgment were made upon the charges brought by the Prosecution in the Indictment. The Trial Chamber’s decision refusing leave to amend the Indictment does not, as such, affect any of the legal and factual findings set forth in the Trial Judgment. It is also recalled that the amendment of the Indictment sought by the Prosecution was aimed at including new and additional charges based on various acts of sexual violence.[816] Denying the amendment did not preclude the Prosecution from charging the Accused with these crimes, since it is within the Prosecution’s discretion to bring, alongside the original indictment, a separate indictment regarding the new allegations it intended to bring in the case.

427. In view of the foregoing, the Appeals Chamber finds that the consideration of this Ground of Appeal would be an academic exercise. The Appeals Chamber, Justice Winter dissenting, concludes that the Prosecution’s Eighth Ground of Appeal is an unnecessary exercise and that it fails in its entirety.

E. Prosecution’s Ninth Ground of Appeal: Alleged Error Concerning Admissibility of Evidence of Sexual Violence

428. In the Prosecution’s Ninth Ground of Appeal, the Prosecution alleges that the Trial Chamber erred in law and in fact and/or procedure in denying its request to lead and adduce evidence of sexual violence under Count 3, other inhumane acts, a crime against humanity, punishable under Article 2.i. of the Statute and Count 4, violence to life, health and physical or mental well-being, in particular cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.a. of the Statute.[817]

429. On 9 February 2004, the Prosecution filed a motion before the Trial Chamber[818] seeking leave to amend the Indictment to add four new counts of sexual violence.[819] The Trial Chamber, on 20 May 2004, Justice Boutet, dissenting, denied the Prosecution’s motion to amend the Consolidated Indictment (“Indictment Amendment Decision”).[820] The Trial Chamber, by majority, also denied the Prosecution’s request for leave to appeal this decision. [821]

430. On 3 June 2004, the trial commenced. On 2 November 2004 the majority of the Trial Chamber, Justice Boutet dissenting, orally stated that evidence on crimes of a sexual nature and/or forced marriage is not admissible under existing Counts 3 and 4 of the Indictment in light of the Trial Chamber’s Indictment Amendment Decision denying the Prosecution’s request for leave to amend the Indictment to add four new counts relating to sexual violence.[822]

431. On 15 February 2005, the Prosecution filed an urgent motion for a ruling on the admissibility of evidence (“Admissibility of Evidence Motion”).[823] The Prosecution sought a ruling as to the effect of the Indictment Amendment Decision and, in particular, whether that decision precluded the admissibility of evidence of sexual crimes under Counts 3 and 4 of the Indictment.[824]

432. In a decision dated 23 May 2005, the Trial Chamber by a majority, Justice Boutet dissenting, ruled that evidence concerning the commission of sexual crimes was not admissible in relation to Counts 3 and 4 of the Indictment and that a written decision would follow shortly.[825] On 22 June 2005, the Trial Chamber issued a Majority decision stating the reasons for the decision rendered on 23 May 2005 (“Reasoned Admissibility of Evidence Decision”).[826]

433. The Trial Chamber found that because the allegations of sexual violence were not specifically pleaded in the Indictment, to admit evidence of sexual violence would infringe the Accused’s rights under Article 17(2) and (4) of the Statute, either because the Accused would not have been properly informed of the nature of the case against him or the admission of such evidence would require a lengthy delay in the trial proceedings, thus violating the Accused’s right to a fair and expeditious trial.[827] The Trial Chamber held that the admission of evidence of sexual violence would prejudice the rights of the accused because: first, Counts 3 and 4 of the Indictment contained no specific factual allegations concerning sexual violence, and therefore, evidence cannot be properly adduced;[828] second, admitting the disputed evidence at that very late and crucial stage of the trial, derogates significantly from Article 17(4)(a) of the Statute which guarantees every accused the right to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charges against him;[829] and third, “nothing in the records seems to support the Prosecution’s assertion that evidentiary material under reference had been disclosed to the Defence in ‘some form’ over 12 months ago,”[830] especially in light of the fact that specific allegations are not contained in the Indictment.[831]

434. On 27 June 2005, the Prosecution requested leave of the Trial Chamber to appeal the Reasoned Admissibility of Evidence Decision.[832] This was denied, by a majority, Justice Boutet dissenting, on 9 December 2005.[833]

435. The Prosecution challenges the Reasoned Admissibility of Evidence Decision, arguing that the Trial Chamber erred in law, procedure and fact in finding that evidence of a sexual nature was not admissible in relation to Counts 3 and 4.[834] The Prosecution submits that the Trial Chamber erred in law in reaching the conclusion that notice of facts underpinning a charge can only be provided on the face of an Indictment and nowhere else, and therefore, the Trial Chamber committed a procedural error by exercising its discretion to deny the Admissibility of Evidence Motion on the wrong legal principle.[835]

436. The Prosecution submits that it is settled law that a defective indictment can be cured where there has been timely, clear and consistent information provided to the accused detailing the factual basis of the charges against him.[836] Furthermore, it submits that, as a matter of law, the war crime of violence to life, health and physical and mental well being of persons, in particular cruel treatment can include crimes of a sexual nature.[837] In light of these legal principles, the Prosecution contends that had the Trial Chamber exercised its discretion correctly and applied the correct legal principle it would have found that the Prosecution did provide timely, clear and consistent information that crimes of a sexual nature were being alleged under Counts 3 and 4 of the Indictment, over twelve months before it sought to lead evidence of sexual violence, through its pre-trial, supplemental pre-trial briefs, and opening statement.[838] To the extent that the Trial Chamber found that “nothing in the record seems to support the Prosecution’s assertion that the evidentiary material under reference had been disclosed to the Defence ‘in some form’ over 12 months ago,” the Prosecution contends that the Trial Chamber erred in fact.[839]

437. The Appeals Chamber observes that Kondewa’s submission in response refers the Appeals Chamber to paragraphs relating to his response to the Prosecution’s Eight Ground of Appeal. However, his references are inconsistent and confusing[840] and often contain arguments which are specific to the Prosecution’s Eighth Ground of Appeal.[841] The Appeals Chamber will only address Kondewa’s arguments that clearly relate to the Prosecution’s Ninth Ground of Appeal.[842]

438. Kondewa’s principal argument in response to this ground is that “the Rules do not allow for interlocutory appeals to be brought at this stage of the proceedings and that the Appeals Chamber does not have jurisdiction to hear Ground 9.”[843] Kondewa argues that the Admissibility of Evidence Motion is governed exclusively by Rules 73(A) and (B) and that under these rules, the Appeals Chamber has already found that it has no jurisdiction to entertain the appeal without leave of the Trial Chamber.[844] Furthermore, Kondewa asserts that the Prosecution’s reliance on Article 20(1)(b) and (c) as a source of jurisdiction is misplaced because the Prosecution has failed to show that its allegations concerning errors of law and fact either invalidated the Trial Judgment or occasioned a miscarriage of justice nor does the Prosecution seek clarification on an important point of law.[845] Thus, under Article 20(1)(b) and (c) Kondewa asserts that the Appeals Chamber has no jurisdiction to hear this Appeal.[846]

439. Fofana raises six arguments in response to the Prosecution’s arguments. First, Fofana notes that the evidence the Prosecution seeks to introduce under existing Counts 3 and 4 was the very same evidence it was to adduce in order to prove four counts of sexual violence had it been allowed to amend the indictment.[847] Fofana thus submits that it is fundamentally unfair for the Prosecution to now seek to introduce evidence through the backdoor that was rejected by the Trial Chamber in refusing to grant leave to amend the Indictment.[848] Second, he submits that the evidence, if it is admitted by the Appeals Chamber, is irrelevant because it will not go to the proof of any Count in the Indictment.[849] Fofana argues that the failure of the Prosecution to plead gender-based crimes is fatal to the admissibility of the evidence because a mere allegation of inhumane acts is too vague to comply with Rule 47(C) and too vague to help the accused prepare his defence.[850] Third, Fofana submits that the Trial Chamber was correct in refusing to admit evidence of sexual violence as it would have necessitated a reasonably lengthy adjournment for the Defence to carry out investigations on the proposed evidence and his rights under Article 17(4)(c) of the Statute would have been violated.[851] Fourth, Fofana claims that had the Trial Chamber admitted this evidence of sexual violence it would have indirectly overturned the Trial Chamber’s ruling refusing to grant the Prosecution leave to amend the Indictment to include counts of sexual violence.[852] Fifth, Fofana argues that the evidence sought to be adduced would be prejudicial to the accused persons.[853] Sixth, Fofana argues that an Indictment cannot be “cured” at the Special Court, because the Rules differ from the Rules at ICTY and the ICTR.[854]

440. In this ground of appeal, the Prosecution alleges that the Trial Chamber committed both an error of law and of fact in refusing to admit evidence of sexual violence under existing Counts 3 and 4 of the Indictment.

441. The Appeals Chamber is of the opinion that acts of sexual violence may constitute “other inhumane acts” as alleged in Count 3 of the Indictment[855] as well as “cruel treatment,” as alleged in Count 4 of the Indictment.[856]

442. Counts 3 and 4 of the Indictment do not explicitly list the acts of sexual violence that amounts either to an “other inhumane act” under Article 2.i. of the Statute or “cruel treatment” under Article 3.a. of the Statute. The Indictment on its face was defective with respect to allegations relating to sexual violence.

443. However, case law at the ad hoc Tribunals recognizes that in limited circumstances, a defect in the indictment may be “cured” if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge.[857] While a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused, the defect may be deemed harmless if the Prosecution can demonstrate that the accused’s ability to prepare his defence was not materially impaired. Factors to be considered in this respect include, among others, information provided in the Prosecution’s pre-trial brief or its opening statement, the timing of the communications, the importance of the information to the ability of the accused to prepare his defence and the impact of the newly-disclosed material facts on the Prosecution’s case.[858] The Appeals Chamber adopts these principles.

444. The Appeals Chamber notes that the Prosecution’s Pre-Trial Brief, filed on 2 March 2004, clearly notes that in relation to Bonthe District, “[t]he evidence will demonstrate that their daughters and wives [civilians] were systematically raped and held in sexual slavery.”[859] The Prosecution’s Supplemental Pre-Trial Brief, filed on 22 April 2004, alleged that under Counts 3 and 4 of the Indictment, in relation to Bonthe District, both Fofana and Kondewa were being held responsible pursuant to Article 6(1) of the Statute for subjecting women and girls to “sexual assaults, harassment, and non-consensual sex, which resulted in widespread proliferation of sexually transmitted diseases, unwanted pregnancies and severe mental suffering . . . ,”[860] as well as for “committing unlawful physical violence and mental harm or suffering through sexual assaults as well as other acts during the attacks in Bonthe District.”[861] Furthermore, the Prosecution’s opening statement, delivered on 3 June 2004, referred to the testimony of several witnesses relating to evidence of sexual violence or forced marriage.[862]

445. The Appeals Chamber therefore is satisfied that by the time the Prosecution filed its Admissibility of Evidence Motion, the Accused had timely and consistent notice for nearly one year that acts of sexual violence were being alleged in relation to Bonthe District under Counts 3 and 4 of the Indictment.[863]

446. Fofana argues that the Trial Chamber was correct in refusing to admit evidence of sexual violence because the “evidence sought to be adduced would be prejudicial to the interest of the accused persons. Such evidence would cast a cloak of doubt on the image of innocence that the Accused enjoys under law, until the contrary is proved.”[864] The Appeals Chamber is of the view that the right to a fair trial enshrined in Article 17 of the Statute cannot be violated by the introduction of evidence relevant to any allegation in the trial proceedings, regardless of the nature or severity of the evidence.[865] The Appeals Chamber concludes that evidence of sexual violence was relevant to charges in the Indictment and that the Trial Chamber was in error in prospectively denying the admittance of such evidence. Further, the accused were put on notice of such evidence, which is not prejudicial in itself.

447. The Appeals Chamber notes that in filing its Urgent Motion for a Ruling on the Admissibility of Evidence on 15 February 2005, the Prosecution sought “clarification as to the extent to which the [Trial Chamber’s Indictment Amendment Decision] limit[ed] the adduction of particular relevant and admissible evidence, under existing counts of the Consolidated Indictment.”[866] At that stage of the proceedings, the Prosecution had attempted to tender only one witness’ testimony concerning sexual violence in evidence.[867] The Trial Chamber denied the Prosecution’s request to tender such evidence.[868] The Prosecution did not appeal this denial, but three months later filed its Admissibility of Evidence Motion.

448. The Appeals Chamber is of the view that filing a motion seeking clarification pursuant to Rules 73 and 90(f) of the Rules is not the proper procedure by which to seek a ruling on the admissibility of evidence. Under Rules 73 and 90(f), the Trial Chamber has broad discretion over the admissibility of relevant evidence.[869] Debates over the admissibility of evidence at trial assist the Chamber to better ascertain the context of the evidence and to assess its relevance and probative value.[870] Thus, the Rules provide that as a general rule a party should seek to tender evidence at trial.[871] If a party wishes to appeal the Trial Chamber’s decision concerning the admissibility of evidence at that juncture, Rule 73(B) provides that a party may seek leave to appeal such a decision from the Trial Chamber.

449. The Appeals Chamber acknowledges that in certain situations there may be unusual evidentiary circumstances that would cause unfair prejudice to a party or undue delay in the trial should a party be permitted to seek a ruling on the admissibility of evidence in advance of tendering such evidence.[872] Here, in its Admissibility of Evidence Motion, the Prosecution argued that it brought the motion to “avoid unnecessary arguments prior to the testimony of a number of witnesses” and because “a ruling on this motion would avoid numerous debates during hearings, interruptions to the testimony of witnesses, and serve the interests of judicial economy and a fair trial.”[873] The Appeals Chamber, however, finds that nothing in the Prosecution’s Admissibility of Evidence Motion concerning the proposed evidence indicates that tendering this evidence piece by piece at trial would have caused undue delay in the trial or unfairly prejudiced a party.

450. The Appeals Chamber, Justice King dissenting, finds that the Trial Chamber erred in denying a hearing of evidence of acts of sexual violence on the basis that such acts had not been alleged in the Indictment. The Appeals Chamber holds that the Trial Chamber erred in dismissing the Admissibility of Evidence Motion for the reasons that it did.

451. Although the Prosecution’s Ninth Ground of Appeal has not raised an error of law that invalidates the decision, i.e., the conviction of the Accused on the Counts to which the evidence would have related, the Appeals Chamber, Justice King dissenting, has exercised its discretion to consider this ground as guidance to the Trial Chamber.

453. The Trial Chamber found that many of the crimes committed by Fofana’s subordinates under his effective control and for which he was found liable under Article 6(3) were of a very serious nature, and were committed against innocent civilians.[875] In this regard, the Trial Chamber expressly discussed the “mutilation and the targeted killing of Limba civilians and the killing and mutilation of Chief Kafala (whom the CDF/Kamajors considered a collaborator) in Koribondo, as indicative of the brutality of the offences committed by Fofana’s subordinates.”[876] The Trial Chamber also described the “gruesome murder of two women in Koribondo who had sticks inserted and forced into their genitals until they came out of their mouths. The women were then disembowelled, and while their guts were used as checkpoints, parts of their entrails were eaten.”[877]

454. The Trial Chamber found that many of the offences for which Fofana was convicted under Article 6(1) were committed “on a large scale and with a significant degree of brutality.”[878] The Trial Chamber specifically noted the “murder of 150 Loko, Limba and Temne tribe members in Talama,” the hacking to death of 20 men on 15 January 1998 at the NDMC Headquarters in Tongo, and the “killing of 64 civilians in Kamboma, who were placed in two separate lines and killed, after which their corpses were rolled into a swamp” as “indicative of the scale and brutality of the crimes that Fofana was found to have aided and abetted.”[879] The Trial Chamber found that these crimes were particularly serious because they were “committed against unarmed and innocent civilians, solely on the basis that they were unjustifiably perceived and branded as ‘rebel collaborators.’”[880]

455. The Trial Chamber also noted that many of the victims were young children and women, and were therefore particularly vulnerable,[881] and considered the crimes to have had a “significant physical and psychological impact on the victims of such crimes, on the relatives of the victims, and on those in the broader community.”[882] In particular, the Trial Chamber noted the “lasting effect of these crimes on victims such as TF2-015, who was the only survivor of an attack on 65 civilians who were hacked to death by machetes or shot, and who was himself hacked with a machete and rolled into a swamp on top of the dead bodies in the belief that he was dead.”[883]

456. With respect to Fofana’s individual circumstances, the Trial Chamber noted that he was found liable for the crimes in Tongo Field as an aider and abettor under Article 6(1) of the Statute, that he was not present at the scenes of the crimes and that the degree of his participation amounted only to encouragement.[884] With respect to the crimes for which Fofana was convicted under Article 6(3), the Trial Chamber considered that the gravity of the offences committed by Fofana in his leadership role as a superior who failed to prevent his subordinates from committing crimes is “greater than that of the actual perpetrators of the crimes.”[885]

457. In respect to the crimes for which Fofana was found guilty, the Trial Chamber imposed a sentence of a total and concurrent term of imprisonment of six (6) years, as follows:

459. The Trial Chamber found that many of the crimes committed by Kondewa’s subordinates who acted under his effective control and for which the Trial Chamber found him liable under Article 6(3) were of a serious nature.[888] Kondewa was also convicted pursuant to Article 6(1) for the same crimes as Fofana in the Tongo area, and the Trial Chamber recalled that it had previously described “the scale and the barbaric nature of [those] crimes,”[889] and that the victims were particularly vulnerable.[890]

460. With respect to the offence of the enlistment of children for which Kondewa was convicted, the Trial Chamber noted the “particular vulnerability of [Witness] TF2-021, who was eleven years old when he was captured by the CDF/Kamajors and forcibly trained to kill and to commit crimes against innocent civilians.”[891] The Trial Chamber considered the crimes for which Kondewa was convicted to “have had a significant physical and psychological impact on the victims of such crimes, on the relatives of the victims, and on those in the broader community.”[892]

461. With respect to Kondewa’s individual circumstances, the Trial Chamber found that while he was held liable on the basis of aiding and abetting under Article 6(1) and as a superior under Article 6(3), he was also held liable for the direct perpetration of some acts, including the shooting of a town commander in Talia/Base Zero, and for committing the offence of the enlistment of children.[893]

462. With respect to Kondewa’s liability under Article 6(3), the Trial Chamber found that in light of “his leadership role as a superior who failed to prevent his subordinates from committing crimes, the gravity of the offence committed by Kondewa is greater than that of the actual perpetrators of the crimes.”[894] The Trial Chamber concluded that “the fact that Kondewa’s failure to prevent was ongoing, rather than an isolated occurrence, had the implicit effect of encouraging his subordinates to believe that they could commit further crimes with impunity, and therefore increases the seriousness of the crimes for which he has been convicted.”[895]

463. In respect to the crimes for which Kondewa was found guilty, the Trial Chamber imposed a sentence of a total and concurrent term of imprisonment of eight (8) years, as follows:

464. In its Tenth Ground of Appeal, the Prosecution alleges that the Trial Chamber committed ten distinct errors, including errors in law, errors in fact and procedural errors, in its determination of Fofana’s and Kondewa’s sentences. The Submissions of the Parties are discussed below in relation to each alleged error.

465. The relevant provisions on sentencing are Article 19 of the Statute and Rules 99 to 105 of the Rules. Both Article 19 of the Statute and Rule 101 of the Rules contain provisions for sentencing. According to the provision of Article 19, a Trial Chamber must take into account the gravity of the offence[897] and the individual circumstances of the convicted person.[898] The Statute also provides that in determining the term of imprisonment the Trial Chamber shall have recourse to the practice regarding prison sentences in the ICTR and the national courts of Sierra Leone, as appropriate. According to Rule 101 of the Rules, aggravating and mitigating circumstances shall, inter alia, be taken into account.[899] Rule 101(c) of the Rules provides that the Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

466. Appeals against sentence, as appeals from a judgement of a Trial Chamber, are appeals stricto sensu. They are not trials de novo.[900] Trial Chambers are vested with broad discretion in determining an appropriate sentence due to their obligation to individualise the penalties to fit the circumstances of the accused and the gravity of the crime.[901] The Appeals Chamber will not lightly overturn findings relevant to sentencing by the Trial Chamber.[902] As a general rule, the Appeals Chamber will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion or has failed to follow the applicable law.[903]

467. In the AFRC Appeal Judgment, the Appeals Chamber explained that to demonstrate that the Trial Chamber committed a discernible error in exercising its discretion:

“the Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[904]

3. Alleged Refusal to Consider Sentencing Practices of the National Courts of Sierra Leone

468. Article 19(1) of the Statute states: “the Trial Chamber shall, as appropriate, have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone.”[905]

469. The Trial Chamber held that it would not give consideration to the sentencing practice in Sierra Leone because Fofana and Kondewa had not been convicted of any crime under Sierra Leone law and because the sentencing practice of Sierra Leone for the convictions in this case would indicate either sentence of death or life imprisonment.[906]

470. The Prosecution submits that the Trial Chamber erred in law in holding as above.[907] The Prosecution argues that it is immaterial that Fofana and Kondewa were not convicted pursuant to Article 5 of the Statute (regarding certain crimes under Sierra Leone law) in light of the practice at the ICTY and ICTR to take into account the sentencing law and practices in the former Yugoslavia and Rwanda, respectively, despite not having jurisdiction over any violations of domestic law.[908]

471. The Prosecution also submits that the purpose of referring to national sentencing practice is that the punishment must reflect the victim’s sense of justice and the needs of the affected communities.[909] The Prosecution further argues that the Statutory language instructing that the Trial Chamber “shall, as appropriate, have recourse to the practice regarding prison sentences in . . . the national courts in Sierra Leone,”[910] requires the Trial Chamber to have regard to those practices.[911] According to the Prosecution, this requirement cannot be negated on the basis that the practice of sentencing to a life sentence or the death penalty is not permitted by the Special Court.[912]

472. In response, Fofana emphasizes that Article 19(1) of the Statute only authorizes the Trial Chamber to consider the sentencing practices of Sierra Leone when an accused is convicted of a violation of Sierra Leonean law pursuant to Article 5 of the Statute.[913] Further, Fofana submits that the Prosecution did not make any submissions “to show that it was appropriate for the Trial Chamber to rely on the sentencing practices of Sierra Leone.”[914] Fofana argues that a related provision in the ICTY Statute has been interpreted to require that the Trial Chamber “must consider the sentencing practices in the former Yugoslavia as an aid in determining the appropriate sentence; however, they are not bound by them.”[915] Applying this interpretation, Fofana submits that it is “important” that “the Trial Chamber should give due consideration to the sentencing practice of Sierra Leone” but it is not bound by it.[916]

473. Fofana also emphasizes that unlike Sierra Leone, Rwanda has incorporated war crimes and crimes against humanity in their domestic legislation. Therefore, the ICTR and the Special Court are authorized to have recourse to the Rwanda sentencing practice for convictions under those crimes.[917]

474. Like Fofana, Kondewa submits that Article 19(1) of the Statute does not establish a requirement, but merely permits a Trial Chamber to have recourse to Sierra Leonean sentencing practice.[918]

475. The Appeals Chamber notes that at the time the ICTY Statute took effect, the former Yugoslavia had domestic legislation criminalizing “acts against humanity and international law.”[919] Similarly, at the time the ICTR Statute took effect, Rwanda had domestic legislation criminalizing war crimes, crimes against humanity and genocide.[920] In contrast, Sierra Leone has not criminalized war crimes and crimes against humanity as such, and consequently there is no specifically relevant sentencing practice for a Trial Chamber to refer to.

476. The Special Court has jurisdiction over crimes defined in Sierra Leone law in addition to certain international crimes. Bearing this in mind, the Appeals Chamber is of the view that the best interpretation of the word “appropriate” is that a Trial Chamber is to have recourse to the practice of the ICTR for convictions for war crimes and crimes against humanity and is to have recourse to the national courts in Sierra Leone for convictions under Sierra Leone law contained in Article 5 of the Statute.

477. In the result, the Appeals Chamber concludes that the Trial Chamber did not err in holding that it will not consider the sentencing practice of Sierra Leone.

“During the Sentencing Hearing, Counsel for Fofana stated, at the specific request and on behalf of his client: ‘[...] Mr Fofana accepts that crimes were committed by the CDF during the conflict in Sierra Leone. Indeed, at least one witness was called on behalf of the Fofana defence, Joseph Lansana, accepting and attesting to crimes committed by the CDF. Mr Fofana [...] deeply regrets all the unnecessary suffering that has occurred in this country.’[921]

Although Fofana by this statement does not expressly acknowledge his personal participation in the crimes for which the Chamber has convicted him, the Chamber finds that he has clearly expressed empathy with the victims of those crimes.”[922]

479. In support of this approach to “[r]emorse” as a mitigating circumstance, the Trial Chamber cited the Orić Trial Judgement, noting that in that case:

“the Chamber held that ‘the Appeals Chamber has held that an accused can express sincere regrets without admitting his participation in a crime, and that this is a factor which may be taken into account. This can be done without an accused having to give evidence or being cross-examined by the Prosecution. In this case, the Accused made no such statement, but throughout the trial, there were a few instances when Defence counsel on his behalf expressed compassion to witnesses for their loss and suffering. The Trial Chamber does not doubt the sincerity of the Accused in expressing empathy with the victims for their loss and suffering, and has taken this sincerity into consideration as a mitigating factor.”[923]

“During the Sentencing Hearing, Kondewa addressed the court and the public in the following terms, ‘Sierra Leoneans, those of you who lost your relations within the war, I plead for mercy today, and remorse, and even for yourselves.’ The Chamber finds that although Kondewa did not expressly recognise his own participation in the crimes for which he has been found guilty, the empathy he has shown is real and sincere.”[924]

481. The Prosecution submits that the Trial Chamber erred in fact and law in considering Fofana and Kondewa’s statements as mitigating circumstances. According to the Prosecution, the Trial Chamber erred in law in considering that statements not constituting “remorse” could be considered in mitigation, and that the Trial Chamber erred in fact in considering the statements to have been “real and sincere.”[925]

482. The Prosecution distinguishes between “expressions of empathy for victims made at a sentencing hearing” from “expression[s] of genuine remorse.”[926] The Prosecution observes that the Orić Trial Chamber at the ICTY considered the accused’s expressions of empathy as a mitigating circumstance without an acknowledgement of culpability. However the Prosecution distinguishes Orić on the basis that Orić expressed empathy prior to the sentencing hearing (e.g., prior to having been found guilty).

483. The Prosecution submits that the Trial Chamber erred in the exercise of its discretion in considering the cursory statements of Fofana and Kondewa as expressions of genuine remorse and that no significant mitigating weight could be attributed to expressions of empathy for victims made at a sentencing hearing without an acknowledgement of culpability.[927]

484. Fofana responds that empathy is a deeper form of remorse since it involves the convicted person putting himself in the shoes of his victims.[928] Further, Fofana submits that the Prosecution failed to provide any support that empathy with victims is not an expression of remorse, and that it is the discretion of the Trial Chamber to determine whether the words used “show real remorse and could therefore be considered as mitigating circumstance [sic].”[929] Fofana submits that, following the ICTY Appeals Chamber judgment in Vasiljević, an accused need not admit to his participation in a crime to be given credit for genuine expressions of regret as a mitigating factor.[930]

485. Kondewa responds that Orić constitutes persuasive authority for the Trial Chamber’s approach and the Trial Chamber’s reliance on Orić is “correct in every respect.”[931] Kondewa also quotes the ICTY Appeals Chamber’s discussion in Vasiljević for support of the argument that acknowledgement of responsibility is not required for regret to be counted as a mitigating circumstance.[932] According to Kondewa, a reasonable trial chamber could find that the following statement made during the sentencing hearing constitutes genuine and sincere regret: “Sierra Leoneans, those of you who lost your relations within the war, I plead for mercy today, and remorse, and even for yourselves.”[933]

486. This sub-ground of the Prosecution appeal against sentence presents two questions: (1) must an accused acknowledge his participation in a crime for his statements to be considered real and sincere remorse; and (2) if not, did the Trial Chamber err in considering Fofana’s and Kondewa’s statements as genuine regret which could mitigate the sentence?

487. The Appeals Chamber is aware of only two cases at the ad hoc Tribunals in which the Chamber considered whether an accused’s expressions of regret or empathy for victims without acknowledgement of responsibility for the crimes could constitute a mitigating factor. In Vasiljević, the ICTY Appeals Chamber opined that an accused can express sincere regrets without admitting his participation in a crime, and that this could be a factor taken into account by the Trial Chamber.[934] However, in Vasiljević, the Appeals Chamber declined to consider Vasiljević’s expressions of regret to be a mitigating circumstance.[935]

488. The ICTY Trial Judgment in Orić is the only case in which a convicted person received credit for expressions of empathy for the victims without acknowledging responsibility.[936] In Blaškić, the accused attempted to express remorse while denying accountability and the Trial Chamber refused to take it into account because, after establishing the facts, it felt his remorse was not sincere.[937]

489. An accused’s acknowledgement of responsibility can be a mitigating circumstance in sentencing because it makes an important contribution to establishing the truth and, thereby, an accurate and accessible historical record. Moreover, such an acknowledgement of responsibility may contribute to peace and reconciliation, may set an example for other persons to make the same moral choice, and alleviate the pain and suffering of victims.[938] Further, acknowledgement of responsibility is part of the rehabilitative purpose of sentencing,[939] and therefore an accused who acknowledges responsibility can properly be credited with a reduced sentence.[940]

490. The Appeals Chamber is of the view that the Trial Chamber could consider genuine and sincere expressions of empathy for the victim’s suffering or regret for crimes committed, without an acknowledgement of responsibility as a mitigating circumstance. The Appeals Chamber opines that the Prosecution has not shown that the Trial Chamber erred in considering that the statements made by Fofana’s counsel and Kondewa were, in fact, sincere expressions of their empathy for the victims, and as such they could be considered as mitigating circumstances. The Appeals Chamber, Justice Winter dissenting, concludes that the Trial Chamber did not err in accepting the expression of remorse in mitigation.

491. Under the heading “Lack of Formal Education or Training,” the Trial Chamber stated that it was:

“aware that both men were propelled in a relatively short period of time, from civilian life to an effective position of authority in a very brutal and bloody conflict, with no adequate training for the roles which they were to play. The Chamber finds that it is only reasonable to take account of the fact that inexperience in difficult situations, [sic] does increase the likelihood of making the wrong decisions. Whilst this in no way reduces the gravity of the crimes which were committed, the Chamber recognises it as a factor in mitigation of sentence.”[941]

492. At the Sentencing Hearing, counsel for Fofana stated that “Fofana may not necessarily have been young, but he certainly lacked experience and was thrown into the desperate situation and asked to act.”[942]

493. The Prosecution concedes that a Trial Chamber may be entitled to take lack of training into account for sentencing purposes, but argues that the circumstances must amount to an accused who has been “very quickly propelled from civilian life to being a military commander, and has been immediately required, without any adequate training, to make numerous quick decisions in the heat of battle while under enemy fire.”[943] According to the Prosecution:

“To be a mitigating factor, there must in each individual case be established facts which show that the lack of training affected the ability of the accused to comply with the requirements of international law, and therefore somehow mitigated the moral culpability of the accused.”[944]

494. The Prosecution argues that in the present case, these conditions did not exist or were not established by the Trial Chamber.[945]

495. Fofana responds that, as a matter of law, the Trial Chamber could consider as a mitigating circumstance the “difficult circumstances in which a convicted person had to operate.”[946] Moreover, even without this precedent, Fofana submits that the Trial Chamber could determine what constitutes a mitigating circumstance as an exercise of its discretion.[947]

496. Fofana responds that, contrary to the Prosecution’s submissions, the Trial Chamber’s statement that it was “aware” that Fofana and Kondewa were propelled in a relatively short period of time is an indication that the Trial Chamber took into consideration the evidence adduced during the trial to arrive at this conclusion.[948] In particular, Fofana points to the Trial Chamber’s findings that Base Zero (Talia) was established by Norman in September 1997 and that shortly afterwards Fofana was appointed “Director of War,” showing he was rapidly propelled from civilian life to an “effective position of authority.”[949] Fofana argues that the Prosecution has not demonstrated that the Trial Chamber erroneously considered this factor in mitigation.[950]

497. Kondewa responds that “[i]n the Bisengimana case, the ICTR Trial Chamber held that the fact that the Accused person was educated amounted to an aggravating circumstance. By parity of reasoning, Counsel submits that the lack of military training and formal education is a mitigating circumstance.”[951]

498. As far as mitigating circumstances are concerned, Article 19(2) of the Statute provides that the Trial Chamber should take into account the individual circumstances of the convicted persons. The Appeals Chamber considers that the level of education and training of a convicted person is part of his individual circumstances which the Trial Chamber is required to take into consideration as an aggravating or mitigating circumstance.

499. Accepting that, as a matter of law, the surrounding conditions including the convicted person’s lack of training can be a mitigating circumstance, the Appeals Chamber opines that the Prosecution has failed to demonstrate that the Trial Chamber erred in considering Fofana’s and Kondewa’s individual circumstances, namely: their inadequate relevant preparation and training for their roles in the armed conflict as a mitigating circumstance.

500. Under the heading “Subsequent Conduct,” the Trial Chamber stated it had examined evidence submitted by Fofana regarding his conduct subsequent to the conflict.[952] In particular, the Trial Chamber noted the submission regarding “Fofana’s commitment to and observance of the Lomé Peace agreement,”[953] the “unchallenged evidence . . . in relation to his efforts subsequent to that agreement to work without any pay with the NGO community in ensuring that members of the CDF remained committed to the peace process within Sierra Leone,”[954] and “the certificate of good conduct filed by the Officer in Charge of the SCSL Detention Facility, attesting to Fofana’s exemplary behaviour whilst in custody.”[955] The Trial Chamber “commend[ed] Fofana’s subsequent conduct in fostering the peace process, and recognises it as a factor in mitigation of his sentence.”[956]

501. The Trial Chamber considered as a mitigating factor “evidence filed by the Fofana Defence regarding Fofana’s conduct subsequent to the time frame in which the crimes he committed occurred.”[957] Specifically, the Trial Chamber considered “Fofana’s commitment to and observation of the Lomé Peace agreement.”[958]

502. The Prosecution argues that the evidence relied upon by the Trial Chamber in regard to Fofana was “largely of a general nature, and does not give specific details of the precise conduct of Fofana that would enable an objective assessment to be made of his actual contribution or efforts to peace and reconciliation.”[959]

503. Fofana responds that this sub-ground was not included in the Prosecution’s Notice of Appeal and therefore should be disregarded.[960]

504. Fofana argues that this sub-ground was not included in the Prosecution’s Notice of Appeal and therefore should be disregarded.[961] Rule 108 of the Rules states in sub-paragraph (A) that “a party . . . shall . . . file with the Registrar and serve upon the other parties a written notice of appeal, setting forth the grounds of appeal.”[962] The requirements of “setting forth the grounds of appeal” is neither elaborated upon in the Rules nor in a practice direction.

505. The Prosecution’s Notice of Appeal stated in relevant part, “[i]n the Sentencing Judgment, the Trial Chamber erred in law and in fact, and committed a procedural error (in that there has been a discernible error in the exercise of the Trial Chamber’s sentencing discretion), in sentencing Fofana to a total and concurrent term of imprisonment of six (6) years . . . .”[963] The Prosecution elaborated that “[i]n particular, the Trial Chamber erred in treating as mitigating circumstances matters which it was wholly improper to regard as such, and/or by giving weight to extraneous and irrelevant considerations that it considered as mitigating circumstances. These include its determination that the Respondents might have acted out of a sense of allegiance to a democratically elected government, rather than out of self-interest; treating as expressions of remorse statements of the Respondents which did not express any remorse at all; and lack of formal education.”[964]

506. The Prosecution did not state that it would appeal consideration of Fofana’s and Kondewa’s post-conflict conduct as a mitigating factor. The Appeals Chamber will, therefore, decline to enter into the merits of this aspect of the Prosecution’s submission.

507. The Trial Chamber noted that neither Fofana nor Kondewa had any previous convictions, and summarily stated that “[f]or purposes of sentencing, a clean slate in terms of their criminal records, [sic] can be considered as a mitigating circumstance.”[965]

508. The Prosecution submits that the Trial Chamber erred in law or abused its discretion in treating Fofana’s and Kondewa’s lack of prior convictions as a mitigating factor. The Prosecution argues that the case law of international criminal tribunals indicates that lack of previous convictions should not be considered as a significant mitigating factor.[966] It further submits that a Trial Chamber exercising its sentencing discretion properly could not treat Fofana and Kondewa’s lack of previous convictions as a matter of any substantial significance in mitigation.[967]

509. In response, Fofana submits that the paragraph in Galić cited by the Prosecution does not address this issue.[968] Fofana argues that the Prosecution has not substantiated its argument that it is only in exceptional circumstances that good character can be considered in mitigation.[969] He cites Ruggiu as examples that “[a]bsence of criminal record has always been treated as a mitigating factor.”[970]

510. Kondewa points to ICTY and ICTR case law to argue that a lack of prior convictions can be considered as a mitigating factor by international criminal courts.[971] He submits that the lack of prior criminal conviction reflects the moral character of the convicted person and the potential for recidivism, and is therefore properly considered as a mitigating factor.[972]

511. Good character with no previous convictions can be considered as a mitigating factor.[973] However, in certain circumstances even when prior good conduct is found, it may be given little weight in light of the gravity of the criminal conduct. Each case has to be determined in the light of its own circumstances.

512. The Appeals Chamber holds that the Trial Chamber did not err in taking a lack of previous convictions into consideration.

(e) CDF’s Alleged “Just Cause” and Fofana’s and Kondewa’s Motive of Civic Duty

513. The Trial Chamber found, Justice Thompson dissenting, that there is no defence of “necessity” in international law, and that “necessity” cannot be taken into account as a mitigating factor in sentencing.[974] It was of the opinion that “validating the defence of Necessity in International Criminal Law would create a justification for what offenders may term and plead as a ‘just cause’ or a ‘just war’ even though serious violations of International Humanitarian Law would have been committed.”[975] It considered that this would “negate the resolve and determination of the International Community to combat” the “heinous, gruesome or degrading” crimes against innocent victims which international humanitarian law intends to protect.[976]

514. Nonetheless, the Trial Chamber took into account as mitigating factors that Kondewa and Fofana and the “CDF/Kamajors” were fighting “to support a legitimate cause which . . . was to restore the democratically elected Government of President Kabbah,”[977] that the Kamajors “were comrades in arms with the regular Sierra Leone Armed Forces as early as from the outbreak of the rebel war,”[978] that the crimes were committed “in defending a cause that is palpably just and defendable,”[979] that Kondewa’s and Fofana’s “CDF/Kamajor fighting forces . . . , backed and legitimised by . . . ECOMOG, defeated and prevailed over the rebellion of the AFRC that ousted the legitimate Government,”[980] and that this “contributed immensely to re-establishing the rule of law” in Sierra Leone.[981] The Trial Chamber concluded that “the contribution of the two Accused Persons to the establishment of the much desired and awaited peace in Sierra Leone and the difficult, risky, selfless and for a very sizeable number of their CDF/Kamajors, the supreme sacrifices that they made to achieve this through a bloody conflict, is in itself a factor that stands significantly in mitigation in their favour.”[982]

“there is nothing in the evidence which demonstrates that either Fofana or Kondewa joined the conflict in Sierra Leone for selfish reasons. In fact, we have found that both Fofana and Kondewa were among those who stepped forward in the efforts to restore democracy to Sierra Leone, and, for the main part, they acted from a sense of civic duty rather than for personal aggrandisement or gain. This factor in addition to others that have been raised in this Judgement has, for each of them, significantly impacted to influence the reduction of the sentence to be imposed for each count.”[983]

516. The Prosecution argues that the effect of the Trial Chamber’s findings was to “hold that it is a mitigating factor in sentencing that the convicted person was fighting on the ‘right’ side in the conflict.”[984] The Prosecution argues that such a holding violates “the most fundamental tenets of international humanitarian law” that “necessity” is neither a defence nor a mitigating factor for sentencing.[985]

517. The Prosecution points to the fundamental distinction between jus ad bellum and jus in bello in international humanitarian law which is “intended to protect war victims and their fundamental rights.”[986] The Prosecution notes that this “principle of parity” is reflected in the Additional Protocols to the Geneva Conventions and is applicable to all armed conflict.[987] This principle means that “even if one side to the conflict engages in serious violations of international criminal law, this does not justify the other side in committing similar crimes in response.”[988] The Prosecution argues that accepting the so-called “justness” of the party to the armed conflict in mitigation “would almost certainly lead to a total disregard for humanitarian law.”[989]

518. In relation to Fofana’s and Kondewa’s motive of civic duty, the Prosecution submits that the Trial Chamber’s treatment of this factor is based entirely on its consideration that Fofana and Kondewa were fighting on the “right” side of the conflict, and incorporates its arguments above in the sub-ground related to “just cause.”[990] The Prosecution argues that the absence of “base personal motives cannot be regarded as a mitigating factor.”[991]

519. Fofana responds that the Prosecution has not demonstrated error in the Trial Chamber’s findings.[992] Fofana compares the motives of so-called “just cause” and civic duty to “important factual and contextual difference[s]” that distinguish one case from another and assist a Trial Chamber in “scaling the sentences” (i.e., individualizing the punishment).[993] Fofana argues that the Trial Chamber did not consider that he fought on the “right” side of the conflict as the mitigating factor, but that he had a good motive.[994] Fofana cites dicta from the U.S. Military Tribunal’s Hostage case, which “observed that mitigation of punishment does not in any sense of the word reduce the degree of the crime.”[995]

520. Kondewa responds that the Trial Chamber’s consideration of his motives was part of its assessment of the particular circumstances of the case and the form and degree of his participation.[996] Kondewa quotes the ICTR Trial Chamber’s Judgement in Ruggiu for the principle that “[w]ith respect to individualizing sentences, [Trial Chambers have] unfettered discretion in [their] assessment of the facts and the attendant circumstances. Such discretion allows the chamber to decide whether to take into account certain factor[s] in the determination of sentence.”[997] Kondewa argues that since an “evil motive” can be considered as an aggravating circumstance, then a noble motive can be counted as a mitigating circumstance.[998]

521. The Trial Chamber held that “although the commission of these crimes transcends acceptable limits, albeit in defending a cause that is palpably just and defendable, such as acting in defence of constitutionality by engaging in a struggle or a fight that was geared towards the restoration of the ousted democratically elected Government of President Kabbah, it certainly, in such circumstances, constitutes a mitigating circumstance in favour of the two Accused Persons.”[999]

522. The Appeals Chamber considers that examination of motive for the purposes of sentencing presents significant problems. As one commentator has noted, inquiry into motive opens the door to speculation about the general moral worth of the convicted person, a task for which courts are ill-equipped.[1000] Nonetheless, the Appeals Chamber is of opinion that evaluation of the motivation, background, and character of the convicted person is part of any system that aims to make punishment proportional to blameworthiness.

523. The Appeals Chamber is of the view that consideration of motive for the purposes of sentence is not to regard motive as a defence. Although motive may shade the individual perception of culpability, it does not amount to a legal excuse for criminal conduct. Therefore, any consideration here of Fofana’s and Kondewa’s “just cause” as a motive for the purposes of sentencing should not be considered as a defence against criminal liability for their conduct.

524. As a general principle, the Appeals Chamber opines that a convicted person’s motives can be considered for sentencing purposes.[1001] Other international criminal tribunals have recognized motives as aggravating factors, such as enjoyment of criminal acts,[1002] sadism and desire for revenge,[1003] group hatred or bias,[1004] and a desire to cause terror.[1005] There may be several other motives that may be considered to be aggravating circumstances, such as a desire for pecuniary gain, a desire to inflict pain or harm, and a desire to avoid detection or escape punishment.

525. Fofana and Kondewa have also argued that motive should be considered as a mitigating factor. The Appeals Chamber has not been directed to any case at an international criminal tribunal in which such an argument has been accepted on the merits. In Simba, the ICTR Trial Chamber, in the context of mitigating circumstances, examined evidence that may have “impl[ied] that his participation in the massacres resulted from misguided notions of patriotism and government allegiance rather than extremism or ethnic hatred;” however, the Trial Chamber did not indicate whether it gave that evidence any weight.[1006] For all factors considered, the Trial Chamber concluded that “limited mitigation [was] warranted.”[1007] On appeal, the ICTR Appeals Chamber suggested this passage “was merely speculation on the part of the Trial Chamber and did not reflect a finding that this motive was itself a separate mitigating factor” but did not state whether it would have considered it an error if the Trial Chamber had treated political motive as a mitigating factor.[1008]

526. In the Media Case, the ICTR Appeals Chamber noted that a defendant argued on appeal that he should receive a mitigated sentence because his actions were performed within a legitimate, democratic and pacific context.[1009] The ICTR Appeals Chamber ambiguously dismissed the argument on grounds that it was not convinced that the facts argued by the appellant constituted mitigating circumstances or that these facts had played a significant role in the determination of the sentence, and specifically suggested that it dismissed the appellant’s democratic motive because he made no reference to any part of the case-file to sustain the arguments .[1010]

527. In Kordić and Čerkez, the ICTY Appeals Chamber rejected Kordić’s argument that the Trial Chamber erred in failing to consider “that his primary motivation was to assist his community” as a mitigating circumstance.[1011] However, rather than stating that the factor was irrelevant or impermissible as a matter of law, the Appeals Chamber ruled that Kordić had “not demonstrated that his motivation to become engaged in politics . . . warrant[ed] mitigation in the light of the seriousness of the offences of which the Trial Chamber found him guilty.”[1012] Similarly, the Prosecution there apparently argued that Kordić’s political motivation was “insignificant when considered against the extreme gravity of the offences of which he was charged.”[1013]

528. In the view of the Appeals Chamber, as a general principle, a convicted person’s motive can be considered as a mitigating factor.

529. The Appeals Chamber turns to the question of whether the particular motive of “just cause” may be considered as a mitigating factor.

530. International humanitarian law specifically removes a party’s political motive and the “justness” of a party’s cause from consideration. The basic distinction and historical separation between jus ad bellum and jus in bello underlies the desire of States to see that the protections afforded by jus in bello (i.e., international humanitarian law) are “fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts.”[1014] The political motivations of a combatant do not alter the demands on that combatant to ensure their conduct complies with the law.

531. Any trial chamber considering punishment must weigh its obligations to the individual accused in light of its responsibility to ensure that it is upholding the purposes and principles of international criminal law. Consideration of political motive by a court applying international humanitarian law not only contravenes, but would undermine a bedrock principle of that law.

532. Furthermore, the Appeals Chamber is of the view that any motive taken into consideration as a mitigating factor must be consistent with sentencing purposes. The following have been recognized by the ICTY as legitimate sentencing purposes: (i) individual and general deterrence concerning the accused and, in particular, commanders in similar situations in the future;[1015] (ii) individual and general affirmative prevention aimed at influencing the legal awareness of the accused, the victims, their relatives, the witnesses, and the general public in order to reassure them that the legal system is being implemented and enforced; (iii) retribution;[1016] (iv) public reprobation and stigmatisation by the international community;[1017] and (v) rehabilitation.[1018] The primary objectives must be retribution and deterrence.[1019]

533. The ICTY Appeals Chamber has held that a convicted person’s motivation of “just cause” contravenes the sentencing purpose of affirmative prevention:

“The sentencing purpose of affirmative prevention appears to be particularly important in an international criminal tribunal, not the least because of the comparatively short history of international adjudication of serious violations of international humanitarian and human rights law. The unfortunate legacy of wars shows that until today many perpetrators believe that violations of binding international norms can be lawfully committed, because they are fighting for a ‘just cause’. Those people have to understand that international law is applicable to everybody, in particular during times of war. Thus, the sentences rendered by the International Tribunal have to demonstrate the fallacy of the old Roman principle of inter arma silent leges (amid the arms of war the laws are silent) in relation to the crimes under the International Tribunal’s jurisdiction.”[1020]

534. The Appeals Chamber concurs with this view, Justice King dissenting. Allowing mitigation for a convicted person’s political motives, even where they are considered by the Chamber to be meritorious, undermines the purposes of sentencing rather than promotes them. In effect, it provides implicit legitimacy to conduct that unequivocally violates the law—the precise conduct this Special Court was established to punish.[1021]

535. The Appeals Chamber, Justice King dissenting, upholds the Prosecution’s submission on this respect of the Prosecution’s Tenth Ground of Appeal.

536. In the conclusion to the Sentencing Judgment, the Trial Chamber found that:

“a manifestly repressive sentence, rather than providing the deterrent objective which it is meant to achieve, will be counterproductive to the Sierra Leonean society in that it will neither be consonant with nor will it be in the overall interests and ultimate aims and objectives of justice, peace, and reconciliation that this Court is mandated by UN Security Council Resolution 1315, to achieve. The motivation of the Accused in this case, where they fought to reinstate democracy, and the prevailing circumstances in which their crimes were committed, has therefore been taken into consideration by the Chamber in arriving at an appropriate sentence.”[1022]

537. The Prosecution submits that the Trial Chamber erred in law and in the exercise of its sentencing discretion by suggesting that a sentence, which would otherwise be imposed in accordance with established case law on sentencing, should be reduced in the interests of reconciliation.[1023] The Prosecution submits that U.N. Security Council Resolution 1315 (2000) “did not suggest that reconciliation could be promoted by the passing of sentences more lenient than would otherwise be appropriate, as a gesture of ‘reconciliation.’”[1024] If anything, unduly lenient sentences for those who have committed the gravest crimes could undermine reconciliation.[1025] The Prosecution argues that if the sentences imposed by the Special Court are not consistent with “what the community would accept as a punishment fitting the crimes in question,” then the Court’s purpose of contributing to the process of national reconciliation cannot be achieved.[1026]

538. The Prosecution also submits that the objectives of reconciliation and the restoration of peace are served by the imposition of sentences which “dissuade for good those who will be tempted in the future to perpetrate such atrocities by showing them that the international community is no longer willing to tolerate serious violations of international humanitarian law and human rights.”[1027] Furthermore, the most important factors in sentencing are deterrence and retribution.[1028] The Prosecution argues that the objectives of reconciliation and the restoration and maintenance of peace are already reflected in the requirement that the punishment must reflect calls for justice from victims, as well as calls from the international community for an end to impunity for massive human rights violations and crimes committed during armed conflicts.[1029]

539. Fofana responds that the Appeals Chamber should dismiss this sub-ground of appeal because the Prosecution failed to include it in its notice of appeal.[1030] In the alternative, Fofana argues that “a sentence is unduly lenient where it falls outside of the range of sentences which the Judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”[1031] Fofana submits that the sentence is not lenient, but is instead appropriate because it strikes a balance between deterrence and reconciliation.[1032] While Fofana accepts “the general importance of deterrence as a consideration in sentencing,” he argues that this factor must not be accorded undue prominence.[1033] Fofana argues that a “manifestly repressive sentence,” rather than acting as a deterrent, would conflict with the objectives of justice, peace and reconciliation as mandated by U.N. Security Council Resolution 1315.[1034]

540. Kondewa responds that the Trial Chamber correctly exercised its discretion in imposing sentences on Kondewa which take into consideration the issue of reconciliation.[1035] Kondewa argues that the objective of reconciliation has begun to gain prominence in international criminal law, although sentencing practices have largely focused on deterrence and retribution.[1036] Kondewa therefore submits that the Trial Chamber correctly held that a repressive sentence against Kondewa would be counterproductive because there is no criminal propensity to be deterred and Kondewa has “unreservedly expressed remorse and real and sincere empathy with the victims . . . .”[1037] Kondewa further argues that the calls for justice by victims, as well as the call of the international community to end impunity, would not have been answered by a harsh sentence.[1038] In addition, Kondewa argues that “unlike the situation in Rwanda and the former Yugoslavia, the war that was fought in Sierra Leone by the CDF/Kamajor troops was done with the active support and collaboration of the international community.”[1039]

541. The Prosecution did not state that it in its Notice of Appeal that it would challenge the Trial Chamber’s appeal consideration of Fofana’s and Kondewa’s post-conflict conduct as a mitigating factor. The Appeals Chamber, Justice Winter dissenting, will, therefore, decline to enter into the merits of this aspect of the Parties’ submission.

5. Alleged Error in Considering the Sentences Would run Concurrently Without Adequate Consideration

542. The Trial Chamber stated that despite its discretion to impose global sentences, it chose to impose separate sentences for each of the crimes for which Fofana and Kondewa were convicted because it “better reflect[ed] the[ir] culpability . . . for each offence for which they were convicted, given that distinct crimes were committed by each Accused in discrete geographical areas.”[1040] Without reasoning, the Trial Chamber then ordered that “the sentences shall run and be served concurrently.”[1041]

543. The Prosecution argues that whether the Trial Chamber imposes global or separate sentences for each count, and if separate, whether they are concurrent or consecutive, the Trial Chamber should ensure that the “final or aggregate sentence” must reflect the “gravity of the offences and the overall culpability of the offender so that it is both just and appropriate” (the “totality principle”).[1042] The Prosecution notes that in the Čelebići case the ICTY Appeals Chamber did not opine directly on the propriety of imposing concurrent versus consecutive sentences, because it considered the sentence inadequate and remitted it for revision.[1043] The ICTY Appeals Chamber held that the Trial Chamber’s sentencing discretion “must be exercised by reference to the fundamental . . . consideration . . . that the sentence to be served by an accused must reflect the totality of the [convicted person’s] criminal conduct” and that “a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes.”[1044]

544. Fofana responds that the Statute and Rules are “sufficiently liberally worded” to allow the Trial Chamber to “impose a concurrent sentences or global sentence.”[1045] Fofana argues that the Trial Chamber has the discretion to choose between concurrent and consecutive sentences, and that the “overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.”[1046] Fofana submits the Prosecution has not shown how the Trial Chamber violated the totality principle.[1047]

545. Kondewa submits that the Trial Chamber acted within its discretion in imposing separate sentences to run concurrently.[1048] Kondewa argues that contrary to the Prosecution’s submission, the Trial Chamber only imposed multiple sentences to be served concurrently after analyzing all the aggravating and mitigating circumstances and after considering the gravity of the offences for which Kondewa was found guilty.[1049]

546. Rule 101(c) of the Rules states “[t]he Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.” The discretion conferred upon the Trial Chamber to choose between consecutive and concurrent sentences is not unchecked, because the Trial Chamber ultimately must impose a sentence that reflects the totality of the convicted person’s culpable conduct. The totality principle is, in fact, recognized by all Parties and firmly supported in the case law of the international criminal tribunals. The totality principle requires that a sentence must reflect the inherent gravity of the totality of the criminal conduct of the accused, giving due consideration to the particular circumstances of the case and to the form and degree of the participation of the accused.[1050]

547. The following examination of several legal traditions demonstrates that Trial Chambers typically enjoy broad discretion to choose between concurrent and consecutive sentences. However, as at the other tribunals, this discretion is restricted by the requirement that the sentence reflect the gravity of the crime and the culpability of the convicted person.

548. In Australia, courts have generally held that it is “impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.”[1051] Australian courts have recognized that “[t]he practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.”[1052] Generally, courts consider that consecutive sentences are appropriate when there are “truly two or more incursions into criminal conduct.”[1053] However, where, “whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.”[1054]

549. In the United Kingdom (England and Wales), courts consider the “sentencer [is] entitled in his discretion to follow the course of imposing concurrent sentences, provided that the gravity of the criminal conduct . . . [is] properly reflected in the principal sentence.”[1055]

550. Likewise, in Canada, courts give the sentencing judge discretion to set the duration and type of sentence due to his or her first-hand knowledge of the case.[1056] The decision to impose concurrent or consecutive sentences is accorded the “same deference [as] the length of sentences ordered”[1057] and a reviewing court defers to the decision to impose consecutive or concurrent sentences so long as the “global sentence” (e.g., the ultimate sentence) “does not offend the totality principle”[1058] or the “transaction concept.”[1059] The transaction concept is similar to the Australian notion that consecutive sentences are appropriate where there are two or more incursions into criminal conduct, and at least one Canadian court has found error when a sentencing judge issued consecutive sentences for crimes that were “part of the same transaction” (e.g., part of the same event).[1060]

551. In the United States, a federal statute gives courts discretion to impose consecutive or concurrent sentences when “multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.”[1061] The same statute mandates that the “court, in determining the particular sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to reflect the seriousness of the offence, to promote respect for the law, and to provide just punishment for the offense . . . .”[1062]

552. The Appeals Chamber notes that the Trial Chamber did not give reasons for its preference for concurrent sentences. However, the relevant question for the Appeals Chamber is not whether the choice of concurrent or consecutive sentences itself represented an error, but whether that choice resulted in sentences that fail to reflect the totality of Fofana’s and Kondewa’s criminal culpability. Accordingly, the merits of this sub-ground will be considered in the Prosecution’s sub-ground alleging that the “manifest inadequacy of the sentence” demonstrates that it is “so unreasonable or plainly unjust” that the Trial Chamber must have erred.[1063]

553. In view of the findings that the Trial Chamber has taken into consideration factors which it should not have considered in the exercise of its sentencing discretion, the Appeals Chamber will substitute its own discretion without the need to pronounce on the Prosecution’s complaint that the sentence was manifestly inadequate.

554. The Appeals Chamber recalls the standard of review of sentencing decisions that have earlier been set out in this Judgement. Relying on those standards, the Appeals chamber notes that it has decided that the Trial Chamber was in error in taking into consideration “just cause” and motive of civic duty in exercising its sentencing discretion.

555. A careful perusal of the sentencing judgement shows clearly that those considerations formed the most important factors that influenced the exercise of the Trial Chamber’s discretion. Indeed, the Trial Chamber stated that the fact that Fofana and Kondewa “stepped forward in the efforts to restore democracy to Sierra Leone, and, for the main part, they acted from a sense of civic duty . . . significantly impacted the influence to the reduction of the sentences to be imposed for each count.”[1064] In the circumstances, the Appeals Chamber comes to the conclusion that the Trial Chamber proceeded on an erroneous basis and that it is entitled to revise the sentences handed down by the Trial Chamber.

556. The Appeals Chamber takes note of the extensive reiteration by the Trial Chamber in its Sentencing Judgment of its findings in regard to the responsibility of the accused persons and also its findings as to the gravity of the offences.

557. The Appeals Chamber gratefully adopts these findings, while having regard to such instances in which the Appeals Chamber has set aside the convictions of Kondewa. To put the exercise of its discretion in proper perspective, and for ease of reference, the Appeals Chamber deems it fit to quote, albeit at some length, some of the significant findings of the Trial Chamber that the Appeals Chamber cannot ignore.

“46. With respect to the crimes for which Fofana was found liable under Article 6(3), the Chamber has examined the gravity of the crimes committed by subordinates under his effective control. Many of these crimes, as described in the Judgement, were of a very serious nature, and were committed against innocent civilians. The Chamber considers actions such as the mutilation and the targeted killing of Limba civilians and the killing and mutilation of Chief Kafala (whom the CDF/Kamajors considered a collaborator) in Koribondo, to be indicative of the brutality of the offences committed by Fofana’s subordinates. The Chamber also notes the gruesome murder of two women in Koribondo who had sticks inserted and forced into their genitals until they came out of their mouths. The women were then disembowelled, and while their guts were used as checkpoints, parts of their entrails were eaten.

47. The Chamber also finds that many of the offences for which Fofana was convicted under Article 6(1) were committed on a large scale and with a significant degree of brutality. In particular, the Chamber notes the murder of 150 Loko, Limba and Temne tribe members in Talama, the killings of 20 men on the 15th of January 1998 at the NDMC Headquarters in Tongo, who were hacked to death with machetes, and the killing of 64 civilians in Kamboma, who were placed in two separate lines and killed, after which their corpses were rolled into a swamp,[1065] as indicative of the scale and brutality of the crimes that Fofana was found to have aided and abetted in the Tongo Field area. Furthermore, the Chamber finds that the crimes were particularly serious insofar as they were committed against unarmed and innocent civilians, solely on the basis that they were unjustifiably perceived and branded as rebel collaborators.

48. The Chamber notes that many of the victims of these crimes were young children and women, and therefore belong to a particularly vulnerable sector of society. For instance, we note our findings of the hacking to death by the CDF/Kamajors of a boy named Sule at a checkpoint in the Tongo area, the murder of a 12 year old boy in Talama, the murder of an unidentified woman who was alleged to have cooked for the rebels in Bo, and the atrocious murder of the two women in Koribundo as described earlier.

49. The Chamber considers these crimes to have had a significant physical and psychological impact on the victims of such crimes, on the relatives of the victims, and on those in the broader community. The testimony of witnesses heard by the Chamber during the trial, and appended to the Prosecution Brief in Annex D, indicates the impact which events such as amputations and the loss of family members have had on the lives of victims and witnesses. As appropriately described and summarized by our sister Trial Chamber II, victims who had their limbs hacked off not only endured extreme pain and suffering, if they survived, but lost their mobility and capacity to earn a living or even to undertake simple daily tasks. They have been rendered dependent on others for the rest of their lives. In particular, the Chamber notes the lasting effect of these crimes on victims such as TF2-015, who was the only survivor of an attack on 65 civilians who were hacked to death by machetes or shot, and who was himself hacked with a machete and rolled into a swamp on top of the dead bodies in the belief that he was dead.

50. With respect to the form and degree of Fofana’s participation, the Chamber notes that he was found liable for the crimes in Tongo Field as an aider and abettor under Article 6(1) of the Statute. The jurisprudence of the ICTY and ICTR indicates that aiding and abetting as a mode of liability generally warrants a lesser sentence than that to be imposed for more direct forms of participation. The Chamber also notes that while Fofana was found liable for aiding and abetting, he was not present at the scenes of the crimes and that the degree of his participation amounted only to encouragement.

51. With respect to the crimes for which Fofana was convicted under Article 6(3), the Chamber has considered the gravity of Fofana’s conduct in failing to prevent the crimes. It finds that the gravity of the offence committed by Fofana given his leadership role as a superior who failed to prevent his subordinates from committing crimes, is greater than that of the actual perpetrators of the crimes. In this case, the fact that Fofana’s failure to prevent was ongoing, rather than an isolated occurrence, had the implicit effect of encouraging his subordinates to believe that they could commit further crimes with impunity. This factor therefore, in our opinion, increases the seriousness of the crimes for which he has been convicted.

53. With respect to the crimes for which Kondewa was found liable under Article 6(3), the Chamber has examined the gravity of the crimes committed by the subordinates under his effective control. Many of these crimes, as described in the Judgement, were of a serious nature. The Chamber notes, in particular, that the CDF/Kamajors in Bonthe stripped Lahia Ndokoi Koroma naked and tied him, a particularly humiliating and degrading act. With respect to Kondewa’s liability under Article 6(1), he was convicted for the same crimes as Fofana in the Tongo area; the scale and the barbaric nature of such crimes has been described above.

54. As is the case with Fofana, the Chamber notes that many of the victims of these crimes were young children and women, and were therefore particularly vulnerable. It notes, in particular, the two incidents involving children in the Tongo area described above with respect to Fofana, and the killing of a boy called Bendeh Battiama by Rambo Conteh in Bonthe.

58. Furthermore, with respect to his liability under Article 6(3), the Chamber finds, as it did with Fofana, that given his leadership role as a superior who failed to prevent his subordinates from committing crimes, the gravity of the offence committed by Kondewa is greater than that of the actual perpetrators of the crimes. The Chamber finds that in this case, the fact that Kondewa’s failure to prevent was ongoing, rather than an isolated occurrence, had the implicit effect of encouraging his subordinates to believe that they could commit further crimes with impunity, and therefore increases the seriousness of the crimes for which he has been convicted.

60. The Chamber considers that, given his role as a former Chiefdom Speaker, a community elder and the CDF National Director of War, Fofana breached a position of trust in committing the offences for which he has been convicted.”

62. The Chamber finds that given the cultural context, Kondewa, in his role as High Priest who blessed the CDF/Kamajors before they went to battle, and as someone widely respected for his mystical powers and abilities to immunize people against harm, held a unique and prominent position in the community. The Chamber therefore finds that he also breached a position of trust in committing the crimes for which he was convicted.

85. In executing this legitimate mission however, at a later stage that appears in the Indictment, and instead of limiting themselves and directing these attacks on legitimate military targets and objectives where collateral damage, if any ensued at all, could be perceived as justifiable, the Accused Persons and their Kamajors, as has been elucidated in the factual and legal findings of the Judgement, went beyond these acceptable military and legal limits and carried out killings and other atrocities against unarmed civilians who they characterised and designated as ‘rebel collaborators’. We find that these atrocities were perpetrated, even though the evidence clearly established, and we so found, that the victims in fact, were disarrayed Sierra Leoneans including children fleeing for their lives and for safety from the bloody exchange of enemy fire, and further, that these civilian captives or fugitives, were unarmed and were not in the least, participating in hostilities. In fact, we note here that the crimes for which they have been found guilty were perpetrated by the Accused Persons and CDF/Kamajor fighters when combat activities and operations against the enemy AFRC forces were already over.”

559. Notwithstanding these findings and the significant finding that the accused persons and their subordinates went beyond “acceptable military and legal limits” the Trial Chamber, importing a consideration of “just cause” and “civic duty” into the exercise of its discretion concluded that their sentences deserved to be reduced.

560. The Appeals Chamber has already decided that these were inappropriate considerations and will now review the sentences, taking into consideration the gravity of the offences as found and described by the Trial Chamber and taking note of legitimate mitigating circumstances which the Trial Chamber has taken note of and the fact that in the case of Kondewa, the Appeals Chamber, Justice Winter dissenting, had not found any allegation of “committing” established against him.

561. In exercising its sentencing discretion, the Appeals Chamber re-emphasizes that it is an international court with responsibility to protect and promote the norms and values of the international community, expressed not only as part of customary international law but also, in several international instruments.

562. Shortly after the Special Court was established, the Appeals Chamber had occasion to pronounce on its character and decided, without hesitation, that it is an international court. In the Decision of Constitutionality and Lack of Jurisdiction,[1066] the Appeals Chamber stated that the Special Court “is an international tribunal exercising its jurisdiction in an entirely international sphere and not within the system of the national courts of Sierra Leone . . .”[1067] The Appeals Chamber came to the same conclusion in the Decision on Immunity from Jurisdiction.[1068]

563. The Appeals Chamber here emphasizes that the crimes of which the accused have been convicted are international crimes and not political crimes, in which consideration of national interest may be a relevant issue. What has to be paramount are international interests in protecting humanity. Such offences as Fofana and Kondewa have been convicted of are of the nature of such “offences that do not affect the interests of one State alone, but shock the conscience of mankind.”[1069] They are not political offences. The Appeals Chamber gratefully adopts the opinion of the Supreme Military Tribunal of Italy quoted in Tadic (Jurisdiction) as follows:

Crimes against the laws and customs of war cannot be considered political offences, as they do not harm a political interest of a particular State, nor a political right of a particular citizen. They are, instead, crimes of lese-humanite (reatu di lesa umanita) and, as previously demonstrated, the norms prohibiting them have a universal character, not simply a territorial one. Such crimes, therefore, due to their very subject matter and particular nature are precisely of a different and opposite kind from political offences. The latter generally, concern only the States against whom they are committed; the former concern all civilised States, and are to be opposed and punished, in the same way as the crimes of piracy, trade of women and minors, and enslavement are to be opposed and punished, wherever they may have been committed . . .” [1070]

564. What should be one of the paramount considerations in the sentencing of an accused person convicted of crimes against humanity and war crimes is the revulsion of mankind, represented by the international community, to the crime and not the tolerance by a local community of the crime; or lack of public revulsion in relation to the crimes of such community; or local sentiments about the persons who have been found guilty of the crimes. In describing what it described as the “Justice Phase” of the armed conflict that took place in Sierra Leone, the Appeals Chamber stated this in “Decision on Immunity from Jurisdiction”: The Justice Phase is that phase in which participants in the armed conflict have to answer for crimes committed in the course of the armed conflict. The Justice Phase itself involves separating what is in the exclusive domain of the municipal authority to be resolved under municipal law from what is in the concurrent jurisdiction of that authority and of the international community to be resolved by application purely of international law.”[1071] The Appeals Chamber had earlier stated in that Decision that: “The parties, whether from the Government side or the insurgents, were . . . subjected to the obligations imposed by international law in a situation of internal armed conflicts.”[1072]

565. Having taken all the circumstances of the case into consideration, the Appeals Chamber, Justice King and Justice Kamanda dissenting, revises the sentences on Fofana and Kondewa in respect of Counts 2, 4, and 5 and imposes sentences on Fofana and Kondewa on Counts 1 and 3 as follows:

i. In respect of Moinina Fofana the sentences of six (6) years imposed by the Trial Chamber on each of Counts 2 and 4 are increased to fifteen (15) years imprisonment on each of those Counts, and the sentence of three (3) years imposed on Count 5 is increased to five 5 years imprisonment;

ii. In respect of Allieu Kondewa, the sentences of eight (8) years imposed by the Trial Chamber on each of Counts 2 and 4 are increased to twenty (20) years imprisonment on each of those Counts, and the sentence of five (5) years imposed on Count 5 is increased to seven (7) years imprisonment;

iii. In respect of Counts 1 and 3, the Appeals Chamber, Justice King and Justice Kamanda dissenting, imposes sentences of 15 years imprisonment on Fofana on each of those Counts and sentences of 20 years imprisonment on Kondewa on each of those Counts;

The Appeals Chamber orders that the sentences imposed on Fofana, and Kondewa respectively, shall run concurrently;

PURSUANT to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence;

NOTING the written submissions of the Parties and their oral arguments presented at the hearings on 12 and 13 March 2008;

DISMISSES, Justice King dissenting, Ground One and UPHOLDS the conviction of Kondewa pursuant to Article 6(3) of the Statute for murder, cruel treatment and pillage committed in Bonthe District;

ALLOWS Ground Two and REVERSES the verdict of guilty for Kondewa pursuant to Article 6(1) of the Statute for murder committed in Talia/Base Zero;

ALLOWS Ground Three and REVERSES the verdict of guilty for Kondewa pursuant to Article 6(3) of the Statute for pillage committed in Moyamba District;

DISMISSES, Justice King dissenting, Ground Four and UPHOLDS the conviction of Kondewa for aiding and abetting, pursuant to Article 6(1) of the Statute, for the crimes committed in Tongo Fields;

ALLOWS, Justice Winter dissenting, Ground Five and REVERSES the verdict of guilty for Kondewa for enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities;

ALLOWS Ground Six and HOLDS, Justice Winter dissenting, that the Trial Chamber erred in respect of the convictions of Fofana and Kondewa for collective punishments;

ALLOWS, Justice King dissenting, Ground One and SETS ASIDE the verdict of not guilty against Fofana and Kondewa for crimes against humanity;

DISMISSES Ground Three and does not enter convictions for Fofana and Kondewa for the crimes committed in Kenema District;

DISMISSES Ground Four and does not enter additional convictions for Kondewa for instigating crimes committed in Tongo Fields or for aiding and abetting crimes committed in Koribondo, Bo District and Kenema District; and does not enter additional convictions for Fofana for instigating and planning the crimes in Tongo Fields or for planning or aiding and abetting the crimes committed in Koribondo, Bo District and Kenema District;

DISMISSES, Justice Winter dissenting, Ground Five and does not enter additional convictions for Kondewa and convictions for Fofana for enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities;

DISMISSES Ground Six and does not enter convictions of Fofana and Kondewa for acts of terrorism;

DISMISSES Ground Seven and HOLDS that destruction of property not amounting to appropriation does not constitute the crime of pillage;

DISMISSES, Justice Winter dissenting, Ground Eight and HOLDS that the Prosecution has not showed that the alleged error relating to the amendment of the Indictment constitutes an error of law invalidating the decision;

ALLOWS, Justice King dissenting, Ground Nine and HOLDS that the Trial Chamber erred in denying the hearing of evidence of acts of sexual violence;

ALLOWS Ground Ten and HOLDS, Justice King dissenting, that the Trial Chamber erred in finding that “just cause” can be a mitigating factor, although rejecting all other arguments raised by the Prosecution, Justice Winter dissenting with respect to accepting the expression of remorse and the purpose of reconciliation in mitigation;

CONSEQUENTLY REVISES, Justice King and Justice Kamanda dissenting, the sentences in respect of Counts 2, 4, and 5 as follows:

In respect of Moinina Fofana the sentences of six (6) years imposed by the Trial Chamber on each of Counts 2 and 4 are increased to fifteen (15) years imprisonment on each of those Counts, and the sentence of three (3) years imposed on Count 5 is increased to five (5) years imprisonment;

In respect of Allieu Kondewa, the sentences of eight (8) years imposed by the Trial Chamber on each of Counts 2 and 4 are increased to twenty (20) years imprisonment on each of those Counts, and the sentence of five (5) years imposed on Count 5 is increased to seven (7) years imprisonment;

COUNT 1: Murder, a crime against humanity, punishable under Article 2.a. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the murders committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the murders committed in Koribondo and Bo District; and SENTENCES Fofana to fifteen (15) years of imprisonment;

COUNT 2: Violence to life, health and physical or mental well-being of persons, in particular murder, punishable under Article 3.a. of the Statute, GUILTY, of aiding and abetting under Article 6(1) of the Statute the murders committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the murders committed in Koribondo and Bo District; and SENTENCES Fofana to fifteen (15) years of imprisonment;

COUNT 3: Other inhumane acts, a crime against humanity, punishable under Article 2.i. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the other inhumane acts committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the other inhumane acts committed in Koribondo and Bo District; and SENTENCES Fofana to fifteen (15) years of imprisonment;

COUNT 4: Violence to life, health and physical or mental well-being of persons, in particular cruel treatment, punishable under Article 3.a. of the Statute, GUILTY, of aiding and abetting under Article 6(1) of the Statute the cruel treatment committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the cruel treatment committed in Koribondo and Bo District; and SENTENCES Fofana to fifteen (15) years of imprisonment;

COUNT 5: Pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute, GUILTY, of superior responsibility under Article 6(3) of the Statute, for the crimes committed in Bo District; and SENTENCES Fofana to five (5) years of imprisonment;

COUNT 6: Acts of terrorism, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.d. of the Statute, NOT GUILTY;

COUNT 7: Collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute, NOT GUILTY, by majority;

COUNT 8: Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities, an other serious violation of international humanitarian law, punishable under Article 4.c. of the Statute, NOT GUILTY, by majority;

COUNT 1: Murder, a crime against humanity, punishable under Article 2.a. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the murders committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the murders committed in Bonthe District; and SENTENCES Kondewa to twenty (20) years of imprisonment;

COUNT 2: Violence to life, health and physical or mental well-being of persons, in particular murder, punishable under Article 3.a. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the murders committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the murders committed in Bonthe District; and SENTENCES Kondewa to twenty (20) years of imprisonment;

COUNT 3: Other inhumane acts, a crime against humanity, punishable under Article 2.i. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the other inhumane acts committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the other inhumane acts committed in Bonthe District; and SENTENCES Kondewa to twenty (20) years of imprisonment;

COUNT 4: Violence to life, health and physical or mental well-being of persons, in particular cruel treatment, punishable under Article 3.a. of the Statute, GUILTY, by majority, of aiding and abetting under Article 6(1) of the Statute the cruel treatment committed in Tongo Fields and of superior responsibility under Article 6(3) of the Statute for the cruel treatment committed in Bonthe District; and SENTENCES Kondewa to twenty (20) years of imprisonment;

COUNT 5: Pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute, NOT GUILTY, of superior responsibility under Article 6(3) of the Statute, for the crimes committed in Moyamba District; and GUILTY, by majority, of superior responsibility under Article 6(3) of the Statute, for the crimes committed in Bonthe District; and SENTENCES Kondewa to seven (7) years of imprisonment;

COUNT 6: Acts of terrorism, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.d. of the Statute, NOT GUILTY;

ORDERS that Moinina Fofana shall serve a TOTAL TERM OF IMPRISONMENT OF FIFTEEN (15) YEARS, subject to credit being given under Rule 101(D) of the Rules of Procedure and Evidence for the period for which he has already been in detention;

ORDERS that Allieu Kondewa shall serve a TOTAL TERM OF IMPRISONMENT OF TWENTY (20) YEARS, subject to credit being given under Rule 101(D) of the Rules of Procedure and Evidence for the period for which he has already been in detention;

RULES that this Judgment shall be enforced immediately pursuant to Rule 119 of the Rules of Procedure and Evidence;

ORDERS, in accordance with Rule 102 of the Rules of Procedure and Evidence that Moinina Fofana and Allieu Kondewa remain in the custody of the Special Court for Sierra Leone pending the finalisation of arrangements to serve their sentences.

Justice George Gelaga King Justice Emmanuel Ayoola Justice Renate Winter
Presiding

Justice King appends a Partially Dissenting Opinion to the Judgment and a Dissenting Opinion to the Sentencing.

“That the evidence adduced does not prove beyond reasonable doubt that the civilian population was the primary object of the attack. By contrast, there is evidence that these attacks were directed against the rebels or juntas that controlled towns, villages and communities throughout Sierra Leone. In this regard, the Chamber recalls the admission of the Prosecutor that the CDF and the Kamajors fought for the restoration of democracy.”[1074]

“[T]he expression ‘directed against’ is an expression which specifies that in the context of a crime against humanity, the civilian population is the primary object of the attack.”[1080] (Emphasis added)

The Trial Chamber was persuaded by the dictum, adopted it and concluded that the expression ‘directed against any civilian population’ requires that “the civilian population be the primary rather than an incidental target of the attack.”[1081]

“The words civilian or civilian population used in this indictment refer to persons who took no active part in the hostilities, or were no longer taking an active part in the hostilities.”[1082]

4. Meeting of the Ambassadors of the United States of America, Great Britain and Nigeria; and the UNDP Representative

(a) Whether CDF fighting “for the Restoration of Democracy” is a material consideration.

“the Chamber finds that the evidence adduced does not prove beyond reasonable doubt that the civilian population was the primary object of the attack. By contrast there is evidence that these attacks were directed against the rebels and juntas that controlled towns, villages, and communities throughout Sierra Leone. In this regard, the Chamber recalls the admission of the Prosecutor that ‘the CDF and the Kamajors fought for the restoration of democracy.’ ”[1105]

It is crystal clear therefore, that the Prosecution not only misquoted the Trial Chamber, but also misquoted it out of context. The fact that the CDF and the Kamajors fought for the restoration of democracy is, to my mind, one of the relevant and material factors for the Trial Chamber to consider in determining whether or not attacks were directed against any civilian population.

“[T]he plan, purpose and design of SAMUEL HINGA NORMAN, MOININA FOFANA, ALLIEU KONDEWA and subordinate members of the CDF was to use any means necessary to defeat the RUF/AFRC forces and to gain and exercise control over the territory of Sierra Leone. This included gaining complete control over the population of Sierra Leone and the complete elimination of the RUF/AFRC, its supporters, sympathisers, and anyone who did not actively resist the RUF/AFRC occupation of Sierra Leone. Each Accused acted individually and in concert with subordinates, to carry out the said plan, purpose or design.”[1106]

“2. The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: